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2L Widener ED Civil procedure Fall 2018
2L Widener ED Civil procedure Fall 2018
110
Law
Graduate
08/30/2018

Additional Law Flashcards

 


 

Cards

Term
Bell Atlantic v Twombly
Definition

Twombly asserted that the baby bells lacked competition in separate markets and conducted parallel course of conduct was against Sherman anti trust act.  

 

For Sherman Anti-trust conspiracy anti monopoly act, a plaintiff must show factual material that defendants conspired to limit competition/raise prices/ or create a monopoly.  Requires contract, combination or conspiracy in restraint of trade or commerce.  

 

Must rise above speculation of a claim but must be plausible

Term
Ashcroft v Iqbal
Definition
Stricter pleading standard in Twombly applies to all civil actions in federal court - must show sufficient facts supporting the allegation.
Term
Rule 12 b 6
Definition

Must include full language in test answer - "every defense for a claim for relieve...."  will have the rule book to reference. 

 

12 b 6 says that a failure to state a claim upon a relief can be granted

Term
How to state a rule during exams
Definition
State entire rule - for example not just 12 b 6 where you may want to just say "failure to state a claim upon which relief can be granted" - when you need to state "Every defense to a claim ... but a party may asser the following defense by motion:"
Term
disfavored defenses
Definition

Lack of jurisdiction

improper venue

insufficiency of process

insufficiency of service of process

 

IF not in initial response to initial plead (either initial motion or initial reply)  cannot be brought up at a later time

Term
Favored defenses and most favored defense
Definition

Failure to state a claim where relief can be provided

failure to join an indispensable party

failure to state a legal defense to a claim

Can be pleaded up to an during trial.  

 

Most favored is lack of jurisdiction of the subject matter (not lack of personal jurisdiction -- this is a disfavored defense)

 

Can be pleaded at any time

Term
Favored defenses and most favord defense
Definition

Failure to state a claim where relief can be provided

failure to join an indispensable party

failure to state a legal defense to a claim

 

Most favored is lack of jurisdiction of the subject matter (not lack of personal jurisdiction -- this is a disfavored defense)

 

Can be pleaded at any time

Term
Pleading process
Definition
  1. Somebody did somebody wrong
  2. Plantiff submits complaint stating cause of action (rule 8 a)
  3. Defendent submits a pre-answer MOTION (only one allowed in most circumstances - rule 12 b and similar - normally to dismiss) or full ANSWER with defenses and denials and/or counterclaims
  4. Judge accepts or rejects D's answer
  5. P or D provides a response based on Judges response
  6. May file 12 c motion for judgement on pleadings
  7. Pre trial discovery
  8. Trial
Term
Shepard Claims vs Darrah
Definition

Darrah's attorney requested 45  day extension, Failed to respond in 45 days due to miscommunication, ct filed default judgement.  

 

Can this default be put aside? Yes, if there is 1) good cause shown (discretionary) and if 2) plaintiff is not prejudiced and if 3) the defense has meritorious defense in its answer.  

 

Lawyer was "careless and inexecusable" but nevertheless unintentional and no reckless disregard.  Preference for trial on merits rather than default judgements

Term
David v Crompton & Knowles
Definition

David injured by shredding machine, Crompton initially answered that it did not have information to deny allegation, then moved to amend the answer to deny that it made and sold the machine (was made before it acquired the manufacturer and did not assume liabilities).

 

  Can the amended claim be rejected?  yes, especially if it prejudices the plaintiff, which it did here as the statue of limits expired in between the amended answer - unduly delayed.  

 

Crompton should have known from the start the "unknown information" therefore the initial answer was treated as admission - ineffective denial

Term
Motion vs Answer
Definition

Motion to dismiss covered in Rule 12 b (1-6 for various reasons) and other 12 x rules.  Very limited ability to do more than 1 motion (only if motion for clearer more information is requested)

 

An answer would be more general - deny claims in plead, etc. 

 

ONLY an answer can be amended within 12 days

Term
Rule 55 a and b
Definition

(a) Clerk must enter parties default when there is no response or defense (just default classification, no judgement here)

 

(b) Entering default judgement by

(1)  the clerk for specific /CERTAIN sum of money AND when there is no appearance by defendant

(2)  the court if for injunction or disputed sums of money

 

 

Term
How to look at discretionary rules
Definition

First know which are discretionary and which are clear and definante (8a 1 is definante - a short and plain statument of claim). 

 

IF discretionary (or good cause) look at harm to plantiff and harm to defendant.  Balance of issues between P and D - 

Look at justice issues.  

Term
Wigglesworth vs Teamsters 592
Definition

Wigglesworth denied free speech at union meeting and sued (federal issue).  In a press conference, he linked teamsters to mafia and fixing elections.  Teamsters counterclaimed for defamation (state law). Wigglesworth filed motion to dismiss counterclaim out of fed ct because no diversity of citizens (all from same state). 

 

Teamster counterclaim is permissive counterclaim-unrelated to original lawsuit (freedome of speech)-must have proper jurisdiction.  Wigglesworth motion is granted. 

Term
Permissive vs Compulsory COunterclaim
Definition

Compulsory counterclaim is one that is directly associated with the original claim and can be heard by the same court - needs "STOO" by showing  1) some logical connection between the two claims (easier to justify same jurisdiction for cclaim)- OR 2) can the same evidence be used to address both claims

 

Permissive counterclaim is not connected to the event giving rise to the original complaint (no STOO) and must have its own federal jurisdiction basis to be heard by the same court/same trial

Term
Krupski vs Costa Crociere
Definition

Krupski injured on Costa Cruise ship, ticket listed costa Crociere as carrier.  Sues Costa Cruise 21 days before statute runs out.  Notified after limitation ran out that costa Crociere was the right defendant.  Krupski amended to name Crocerie as defendant but trial and appeals court both rejected the amendment and case because plaintiff should have known who the right defendant is. 

 

Reversed -  Rule 15 c allows amending pleading back to date of original pleading if honest mistake - standard is not what plaintiff should know but what defendant should know

Term
Defense vs Offensive Actions to Plantiff Complaint
Definition

Defensive - MTD, Denials, Affirmative Defenses. 

 

Offensive - coouinterclaim

Term
When do you need to know if compulsory or permissive
Definition
Term
Kedra v City of Philadelphia
Definition

Kedra family (mother and 8 kids) sues police and commissioner.  Invoked rule 20 for joinder due to systematic harassment of family, false arrests, interrogations, etc. over 14 months. 

 

Joinder allowed because "reasonable related" because of 'systematic harassment" 

 

Liberality in unification of claims for convenience and efficiency.   

Term
Insolia v Phillip Morris
Definition

Three wisconsin widows sued for conspiracy against PM and other cigarette manufacturers.  Invoked rule 20 for joinder saying smoked over 20 years, all had lung cancer, and deception of "tobacco institute" denial of addictiveness. 

 

Was rejected first and second time - unfair/prejudice to defendants - not common and complex set of facts (when started, how long, brands, was lung cancer right Dx, smoking root cause, addiction, etc.) - and not efficient use of judicial system

 

 

Term
Clark vs Associates - Rule 14 Impleader
Definition

Tractor repossessed, injuries, sues Associates who had the loan.  Associates sought impleader (rule 14) to bring in those who did the repossession. Both new groups and plaintiff did not want Impleader (said contract dispute). 

 

Ct accepted impleader because 3rd party is or is potentially liable for all or part of the claim - efficiency and convenience of judicial and party efforts unless it prejudices the other party - 3rd party does not have to be directly liable to plaintiff - does not need to be on same theory as initial claim  (contract dispute)

 

Term
Rule 13
Definition

Counterclaims and Crossclaims

(a) Compulsory ones must be filed at time of first notice (some exceptions allowed) and "arise out of the STOO OR Logical relationship (easier) that is the subject matter of the opposing party claim"

 

(b) Permissive ones are also allowed if they don't arise out of the same transactions or occurrences

 

(g) crossclaims always permissive - against 3rd parties only when they arise out of STOO (def 1 sues def 2) - Rule 18 then allows new claims but only under counter or cross claims (do new card for rule 18)

Term
When does permissive vs compulsory come into play for counterclaims
Definition

1) counter claim arises under state law vs fed initial complaint and no diversity - no independent subject matter jurisdiction - would then dismiss counterclaim for permissive or compulsory and claim supplemental jurisdiction over both state and fed jurisdiction

2) if cc is based on expired SOL - when counterclaim tort actions ending at same time, plaintiff files day before SOL expire, judge will allow cclaim - if 1) it was "alive at time of filing" or 2)damage amounts are similar to original action or 3) STOO. 

3) if the same parties in same dispute is compulsory and already active in another court, the cc will be dismissed.  

Term
Rule 41 Voluntary Dismissal
Definition

 

Voluntary dismissal allowed once for most any reason, but second voluntary dismissal serves as adjudication on the merits.  

 

 

Term
Rule 18 - Joinder of Claims
Definition

Joinder of Claims.

(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

 

(b) Joinder of Contingent Claims.  A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.

Term
Davis v Ross
Definition

Davis sues Ross for defamation - Ross said she was fired for poor performance and personal habits.  

 

P made 3 requests that were denied (Ross income and net worth to assess punitive damages (only relevant if wins), money paid to lawyer (not relevant, but fee arrangement is relevant) and statements from other employees (not relevant).  

 

Ross requested psychiatric med records to establish her emotional distress (was relevant and allowed)

Term
Kozlowski vs Sears
Definition

Children's pajamas made by Sears "was caused to ignite". Plaintiff wanted previous history of similar claims, requested it in discovery.  Sears's claim system was organized alphabetically, not by claim.  Said it was impossible to find other similar claims.

 

Courts ruled that their cost and burden to produce the discovery material is not relevant reason to not produce.  Their system was poorly designed, perhaps to thwart discovery.  

Term
MCPeek vs Ashcroft
Definition

McPeek was sexually harassed at his gov employment, settled, but then was harassed about being sexually harassed.  Sued again, requested backup electronic records from his supervisor (emails, etc) that would demonstrated this harassment. 

 

Ct said burden of searching these records outweighs the likelihood of finding evidence (was a poor backup system).  Balance test between cost and likelihood - also factored gov employment as a factor - did trial run of searching backup.  New rules are different....

Term
Proportionality factors for discovery - burden of production vs likelihood of benefit
Definition
  1. Importance of the issues
  2. Amount in controversy
  3. Parties relative access to the information
  4. Parties resources (Sears vs normal person)
  5. Importance of the discovery to resolve the issues
  6. Burden compared to the benefit
Term
Rule 14 Impleader
Definition

When a defending party may bring in a third party - who is is or MAY be liable for part or ALL of the claim against it.  

 

Must be within 14 days of initial answer to original claim.  

 

Must assert any defense against 3rd party via Rule 12

 

Must assert counterclaim per Rule 13a, b, or g

Term
Two types of discovery
Definition

1) Disclosure, you are expected to provide standard information - and information asked for - can provide additional information that may benefit your case

2) Discovery where you are ordered - something in contest with the courts - 1) cannot be privileged (atty-client, etc) - 2) must be relevant -3) proportional in cost vs likelihood of importance of info to the case

Term
Hickman v Taylor
Definition

Taylor tugboat sinks, Hickman dies.  Hickmans atty interviewed survivors of the accident and transcribed.  Defense requested all written statements so that he could double check his testimonies, Plaintiff atty declined, ct order to turn over. 

 

 Opposing counsel must show necessity, justification, or undue prejudice for accessing written statements and memorandum.  

 

Hickman atty wins, does not turn over transcripts - did not have sufficient reason to access opposing atty transcripts

Term
In re Shell
Definition

Shell refinery explodes, class action suit ensues.  Shell has in house experts that did tests after explosion for prep in lawsuit.  Opposing Atty requested test results, saying $300K to do own tests was undue hardship, Ct, rejected.  

 

Atty client privilege applies to in house and retained experts and opposing atty must show undue hardship. 

 

$300K to run test in large class action suit is not sufficient.  

 

 

Term
Cine vs Allied Artists
Definition

Cine sues Allied for treble damages of $3mil. Def requested method of calced damages and other interrogatores.  Either never replied or did so with sever inadequcies for 3 years.  

 

Defendants moved to dismiss based on Rule 37 - was not sure if it was general negligence (resulting in milder sanction likely preclusionary order) or gross negligence/willful disobedience (resulting in ultimate general sanction of "at fault" dismissal)- regardless, Cine is not allowed to enter this information in court.  

Term
Rule 4m
Definition

must serve defendant within 90 days of filing complaint to court - or get dismissed without prejudice

 

Can be extended for good cause

Term
Rule 7a - Pleadings allowed
Definition

Only certain pleading are allowed

  1. Complaint
  2. Answer to complaint (would include cross and counterclaim)
  3. answer to counterclaim
  4. answer to crossclaim
  5. third party complaint
  6. answer to 3rd party complaint
  7. if the court orders a reply to an answer
Term
Rule 8a - Claim for relief
Definition

8 a 1 - grounds for jurisdiction

8 a 2 - short and plain statement of complaint

8 a 3 demand for relief

Term
Rule 8 b 1 - defenses, admissions, denials
Definition

b 1 - short and plain response to each claim and defenses, admission or denial for each

 

Term
Rule 8 b 2, 3, 4 - denials
Definition

Denials must respond to the substance

 

Deny part of the allegation can be done

 

Lack information or knowledge is OK

 

Failing to deny serves as an admission

Term
Rule 8 c 1 - list of affirmative defenses
Definition

 

 

accord and satisfaction

 

assumption of risk

 

duress

 

license

 

statue of limitations

Term
Rule 9 b Fraud or Mistake
Definition

If alleging fraud or mistake as cause, the party must state specific circumstances showing fraud or mistake

 

Malice, intent, knowledge and other conditions of a persons mind may be alleged generally (no specifics needed)

Term
Rule 11 a and b Signing motions and papers
Definition

Atty certifies to the best of his knowledge that it is 

  1. Not done to harass, delay or increase cost of litigation
  2. Claims and defenses are warranted and non frivolous
  3. Facts have support, or will with future discovery
  4. Denials are warranted or reasonably believed
Term
Rule 11c Sanctions
Definition
If 11b is violated, there are details about sanctions
Term
RUle 12 a time allowed for responsive pleading
Definition

Rule 12 is all about responding to Rule 8 - the g

 

Up to 21 days for responsive pleadings

Term
Rule 12 b 1 - 7 - Urgent defenses where some must be done as pre trial motions rather than answers
Definition
  1. Lack of subject matter jurisdiction (bankruptcy, etc.)
  2. Lack of personal jurisdiction (where you or other live)
  3. Improper venue - geography only - State A or B
  4. Insufficient process
  5. Insufficient service
  6. Failure to state a claim where relief can be granted 
  7. Failure to join a party under rule 19

6&7 can be done after motion for more def statement

Have 14 days to respond to pre trial motions

 

 

 

Term
Other rules in 12
Definition

Pre-trial Motion for summary judgement (c)

 

Pre trial Motion for more definite statement (e) 

 

Must respond to pre trial motion within 14 days

 

Motion to strike (f) a insufficient defense (this is a motion to a previous motion)

 

Remember 12 b 2-5 defenses are waived if not presented in the first chance to submit the motion (can do in answer but better as pre trial motion)

Term

Rule 13 (a) Compulsory Counterclaim

 

13 b (permissive) or 13 g(crossclaim)

 

 

Definition

Compulsory - MUST be done during initial answer if:

  1. arises out of STOO OR Logical relationship (easier) AND
  2. Does not require adding another party over whom the court cannot acquire jurisdiction

Unless:

If counterclaim was already active in another pending action OR

  1. Opposing party sued on attachment (property) that did not establish personal jurisdiction
Term
Ways to add additional parties
Definition

13 a (compulsory crossclaim)

13 h - if need to join parties in cross or counterclaim (under rule 19 (compulsory joinder) or 20 (permissive))

 

Rule 14 (main rule - contributory or indemnification)

 

Amend original claim (15a) and then joinder

 

Rule 19 (required joinder of parties)

 

Rule 20 (Permissive joinder)

Term
Brief summary of how to add third parties
Definition

13 a, g, h

 

Rule 14 (main rule - contributory or indemnification)

 

15a (amend claim) and then joinder

 

Joinder 18, 19 pr 20

Term
Rule 14 - Adding third parties
Definition

Big one - just know that I need to refer to this one 

 

(a) Third Party Claims and Defenses 

 

(b) plaintiff can also add 3rd parties

Term
Rule 15 - Amended and Supplemental Pleading
Definition

(a) Amending before trial - either party can do

 

(c) Relation back of Amendments (STOO) OR Changing the party

Term

Rules 19 (required joinder) and 20 (permissive joinder)

 

yes, it is called required and not compulsory

Definition

19 required if special circumstances arise - think of if I cannot attend birthday party, no party, same for trial, if 1 special person is required, they must be joined

 

20 - in STOO (MUST BE SAME LAW or FACT - not just reasonable related) or if they have right for join relief (mini class action)

 

Can be for series of transactions (Kedra v Phlly)

Term
Rule 23 for class action requirements
Definition
  1. Too numerous
  2. Common set of law or facts (not just reasonable related)

 

 

Term
Three types of required disclosures in Rule 26
Definition

Required at initial disclosure unless 26 a 1 B applies

 

  1. Naming of witnesses
  2. Documents
  3. Calculated damages
Term

Rule 26 a 1 B

 

Discovery scope and limit

Definition

Discovery scope and limit

 

Proportionality test of burden of discovery vs lilihood of benefit

Term
Rule 26 c protective orders
Definition

If good cause, court may offer order of protection from annoyance, embarrassment, oppression, undue burden of expense 

 

RUle 37(a) is motion to compel discovery

Term
Rule 41 Dismissal of claims
Definition
Balancing test regarding if will be with or without prejudice
Term

Rule 55 for entering in default judgent

 

Rule 56 summary judgement rule

Definition

55 is when defendant does not respond and judgement default is given

 

56 Can be a motion before any responses

Term
Rule 37 - Failure to make disclosure of discovery
Definition

Motion to compel disclosure or discovery - must certify that you tried in good faith to get info (either no response or could not come to agreement)

 

Sanctions for no disclosure or disco

 

covers discovery issues with electronic info destroyed, not showing up to depositions, not answering interrogatories

 

if you get part reponse, harder process than if they do not reply at all

Term
Discovery Devices
Definition
Interrogatories (written), depositions (oral), request for documents, request for admissions, request for medical exam
Term
Rule 55
Definition
Motion for default judgment - when defendant does not answer - requires affidavit of no response.
Term
Rule 33 Rules for interrogatories
Definition

25 interrogatories allowed

30 days to respond

Can include objections

Can request business records prepared prior to law suit (after lawsuit they may be related to preparation for litigation and therefore privileges)

 

 

Term
Work Product Doctrine
Definition

Notes related to preparation for litigation by lawyers or other representation of the party are privilege

 

Work product is anything that you can bill as an atty

 

Also privileged for internally retained experts

 

no-named employees do not have privilidged information

Term
Rule 26 b - scope and limit of disclosure
Definition

Must show

1) relevant (substantial need)

2) Not privliged

3) proportional (show undue hardship)

Term
Three types of sanctions for failure to disclose or disco
Definition
  1. Preclusionary orders - if you preclude evidence, you cannot benefit from lack of disclosure, or juries will be instructed to disregard or assume evidence goes against non disclosing party, or court can declare a fact to be established
  2. Specific deterrence - fines, paying for other party to do disco, contempt of court, etc. 
  3. General Deterrence- "at fault" dismissal of case; Dismissal based on a) willful, bad faith, or fault, b) if adversary was prejudiced by non disclosure, c) if there were warnings for dismissal, and d) if can less drastic sanctions be used
Term
Difference between Burden of Proof - application for dismissal of case
Definition

Burden of Production - is there enough evidence to go to trial - court decision only - if you want to dismiss, you must get court to level of Persuasion (below) - may shift between plaintiff and defendant - plausibility standard generally.  

 

 Burden of Persuasion - enough evidence to convince the jury/trier of fact - normally the plaintiff must show Persuasion - this is always the same level which is no reasonable juror standard

 

Term
3 Different Levels / ways to think about burden for summary judgement
Definition
  1. A movant must establish the truth of her position - regardless (Adickes case) -
  2. The Movant must demonstrate the absence of proof or an essential element of the non movant case.  
  3. Require the nonmovant to come forward with her supporting evidence

The movant in all 3 cases must shift the burden before the nonmovant to respond and seen in light most favorable to the non moving party to a level of no reasonable juror.  

Term
Adickes vs Kress
Definition

White teacher brings blacks to lunch, was refused service and arrested, she sued for conspiracy between Kress and police.  initial case dismissed under summary judgement

 

Sup Ct ruled that movant (Kress) must prove that there was no conspiracy -must show no police in the store and no agreement between Kress and Police to not serve Adickes

 

Must view evidence in light most favorable to the nonmovant party to a level of no reasonable juror

 

Term
Galloway vs US
Definition

Galloway was wounded warrior PTSD, applied for total disability with VA, denied, Galloway sued to Sup Ct saying summary judgement violated 7th amendment (right to a trial by jury)  

 

Summary judge does not violate 7th amend.  Galloway had 10 year gap in history between service and disability, with limited speculative vague testimony.  Did not meet the burden of production to go to trial. 

 

Not a great example of proper "no reasonable Juror" standard in "Light most favorable"to the nonmovant - scintilla of evidence

Term
Ahern vs Scholz - JMOL Rule 50
Definition

A verdict may be set aside and a new trial ordered when the verdict is against the clear weight of the evidence.

 

Ahern was manager of Boston.  Ahern sued re royalties, and Scholtz countersued.  Trial court ruled for Ahern; Scholz was denied motion for new trial. Sup Ct agreed. 

 

Verdict can be put aside when the verdict is against the clear weight of evidence - shocks the conscious- not "may result in different verdict" standard - reasonable jury standard - not the courts role to sit as jury, but rather to evaluate if jury decision was against the weight of evidence.   

Term
Differences between 12 b 6; 12 c, 50 and 56
Definition

Lots of overlap, some definitive exclusions

 

12(b) 6 failure to state a claim - earliest possible dismissal- can be pre-answer motion

12(b)1 subject matter jurisdiction anytime

 

12 c only after pleadings complete 

 

Rule 56 Summary Judgement/declared verdict up to 30 days after discovery (can be before pleadings complete)

 

Rule 50 JMOL only during trial - and after other party has rested its argument (witnesses for that side have been heard)

Term
RUle 50 - JMOL (Judgement as Matter of Law)
Definition

Only made after opposing party is "fully heard"

 

Must not have any genuine dispute on any material facts (did not establish an element to state a claim)-"no reasonable jury" standard; Judge must view evidence in light most favorable to nonmoving party (like sum judge)

 

(a) before trial end asking Judge to rule (not sum judge)

(b) JMOL 50a rejected; RMJMOL done after, req new trial

(c) RMJMOL granted in 50b, conditional rule for new trial

(d) JMOL granted, loser must file for new trial in 28 days

(e) specific issues of JMOL denial is reversed on appeal 

Term
Key results of pennoyer vs neff
Definition

1) personal jurisdiction  right under due process of 14th amendment - must be personally served not just notice in paper.  Property in the state is not sufficient for personal jurisdiction.  

 

3) two corollaries - (a) state has total power over person and property in state and (b) state has no power over person and things outside its border.  State border is key. 

 

Full faith and credit allows you to get judgement in one state and get it enforced in another state.  

Term
International Shoe
Definition

Intl Shoe, Corp in DE with principle place in MO and salesmen in WA; WA state wanted unemployment funds from Shoe's WA employees. Shoe said they were not doing business in WA and not formally have employees

 

Corporation "in personam" is when business activities have been continuous and systematic - also referred to as "minimum contacts" that do not offend "traditional notions of fair play an substan justice"

 

Judged by 1) quality and activity of business activities and 2) is activity is related to the action/suit

Term
McGee vs International Life Ins Co
Definition

Cali Guy buys life insurance from Intl Life, TX company with no offices in CA.  Guy dies, Intl life does not pay 

 

State Courts has jurisdiction over out of state company when that company has substantial CONNECTIONS in that state; the national economy would suffer if otherwise.  

 

Are long distance business CONNECTIONS PURPOSEFUL (McGee billing meaning yes personal jurisdication) or DERIVATIVE (Hanson/Donner where business did not make the contacts/communication -no personal jurisdiction)

Term
Gray vs American Radiator (Titan Valve case)
Definition

IL long arm statue for "Tort acts"; IL resident injured by Amer Radiator exploding (basd in PA), also sued Titan Valves (based in OH).  Titan said they had no connection with IL (only sold valves to PA) and said no tortious act as traditionally defined. 

 

Tort jurisdiction is based on where the injury occurred, and potential tort is when an injury occurred because of the "stream of commerce" arising to substantial use and consumption in the forum. there is personal jurisdiction for Titan in IL.

 

Example of expanding in personam jurisdiction -even to anyone who drives in a state

Term
General vs Specific Jurisdiction
Definition

General = "all purpose" jurisdiction - domicile or a business that is "fairly regarded as having a "home"" in that state.  Can hear ANY complaint against that def. 

 

Specific (or Case linked) jurisdiction - suit must arise out of defendants CONTACTS in that forum/state - some activity or occurrence that takes place in that state.  Must have issues or controversies associated wit that state. 

 

Plavix suit needed to have someone who bought, prescribed, ingested, obtained drug in CA - did not, so CA was not proper forum.  

Term
Analysis of Long arm statutes - what is "doing business"
Definition

First consider if there is a statute that applies - two ways of judging (a) does the litigation arise from the business or tort act, OR (b) if there is more strict reading of the statute that is specific to the circumstance

 

Second, check the constitutionality of the long arm statue-if all persons "found within the state" is too broad

 

1A IS MCGEE (transaction of any business in state)

b4 IS GREY/TITAN VALVE (corp doing business in state)

 

NEED TO GET BETTER UNDERSTANDING

Also within a 100 mile bulge within the courthouse ONLY IF UNDER RULE 14 (CODEFENDANT)

Term
McIntryre Machinery vs Nicastro 2011
Definition

Nicastro Injured by Mcintryre machinery in NJ; company based in England.  

 

ENglish company still under NJ jurisdiction if there are sufficient contacts such that the suit does not offend traditional notions of substantial justice.  

 

Minimum Contacts need purposeful action or foreseeability in the forum state to conduct business. McIntyre did not pursue business in NJ, therefore there is not sufficient minimal contacts.

Term
Goodyear Dunlop vs Brown
Definition

Two NC kids killed in bus accident in Paris.  Parents filed suit in OH, and three subsidiaries operating exclusively in Turkey, France and Lux. defective tires produced in Turkey.

 

A state court cannot exercise general jurisdiction over a foreign subsidiary if the subsidiary does not engage in continuous and systematic activities in the state. 

 

No minimum contact, no continuous and systematic activity, no single or occasional acts, did not even buy any materials in NC

Term
Shaffer vs Heitner
Definition

Heiter sued Greyhound on shareholder derivative suit in DE alleging acts in Oregon; filed motion for sequestration of Greyhound stock.  

 

Does quasi in rem jurisdiction require minimum contacts in that state and the interests of the defendant's property seized?

 

Yes, minimum contacts per Shoe required; just being incorporated in DE does not provide min contacts to justify jurisdiction - many people do not know where the company is based.   

Term
Where diversity does not provide federal jurisdiction
Definition

Family law - divorce, custody, probate

 

Domestic relations exception -no divorce, custody, alimony, etc. 

 

ANd probate courts - Anna nicole smith and aged husband estate - tort action after probate and in a bankruptcy court. 

Term
Does personal service in the state always mean jurisdiction in that state
Definition

Mostly yes but divorce cases can come out either way - if amicable to agree for welfare of children to live in CA with mother, the father who only visits children in CA and gets served still does not get jurisdiction.  Father in CA on business can have jurisdiction in CA

 

Some would say that being in that state means you are ageeing to state jurisdiction..  

Term
Two ways to look at Intl Shoe Forum to determine jurisdictionality
Definition

1) Territoriality - min contacts with the territory of the forum that do not offend...

 

2) Reasonableness - 5 factors

a) defendants burden

b) Plaintiff interests & location

c) forum states interests (for settlement of law)

d) Efficiencies or resolving issue of law

e) fundamental fairness of social policies

 

If Min contacts barely there then use the reasonableness factors to push over line or not

Term
Asahi re Jurisdiction -
Definition

Plaintiff motorcycle accident sued cheng for faulty tire - Asahi (Taiwan) is maker of valves for tire.; forum in CA.  

 

Two "stream of commerce" approaches:

1) (harder to establish) stream of commerce must be targeted & purposeful to that forum - purposeful shipment, advertising, etc; however, not very good for component part manufacturers like Ashai valves

 

2) (easier) traditional stream of commerce approach where the manufacturer knows (or should know) that their products are distributed to that state or forum.  

Term
Burger King v Rudzewicz
Definition

Minimum contacts dependant upon LEVEL and QUALITY of the  defendant contacts - the courts must look to the

 

1)  QUALITY of contacts - was there PURPOSEFUL directed activities of the defendant toward the forum state

AND

2) LEVEL of ACTIVITY - whether the harms arising or relating to those activities are the cause of the litigation. 

 

Contacts cannot be from fraud, undue influence, unequal bargaining power.  Rudzewicz can be sued in FL - knew that main BK corporation is in Miami.  

Term
How to analyze out of state defendant
Definition

1) is there a long arm statute that applies to the facts and gives rise to the litigation

 

2)  Is there specific or general jurisdiction? - Look at a) 

If general - are they doing business or clearly active in state with principle place of business or home.  

If specific, look at min contacts and are they related to the litigation and look at reasonablness factors

Term
28 USC 1391 Venue Generally
Definition

Civil actions can be brought in judicial district, 1) where any DEFENDANT lives if all live in same state, OR 2) where claim occurred, 3) if 1 or 2 are not applicable, then judicial district can be where any Def lives.  

  

Residency can be multiple , only 1 domicile

Domicile is residence and intention to return

  

Corporations across many states residency is wherever there are minimum contacts established

 

If 1 state (like PA, NJ) has multiple venues, choose judicial district with most contacts.  

Term
28 USC 1404 - Change of Venue
Definition

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought OR to any district or division to which all parties have consented.

 

1404 and 1406 is for transfer one district ct to another, not for state to state or to another country

 

 

 

Term
28 USC 1406 - Cure or waiver of defects - filing in wrong district
Definition

The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

 

happens after a 12 b 3 motion by the defendant when plantiff initially files in wrong venue

Term

28 USC 1331 and 1332

 

STATE CITIZEN REQUIRES DOMICILED IN STATE AND CITIZEN OF US

 

 

Definition

1331 - The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

 

1332-The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds $75K and is between complete diversity of citizens from diff states or a foreign country

 

NOT citizens of foreign country who are also legal residents in the same state (considered residents of current state)

 

 IF ONE MOVES, DOES NOT CHANGE ORIGINAL DIVERSITY

Term
Corporations for 28 USC 1332
Definition

A corporation is a citizen of states where they are

1) incorporated

2) principle place of business  

or 

3) for insurers, they are citizens of any state where the insured is a citizen

Term

Forum non conveniens (FNC)

 

28 USC 1404 (a)

Definition

Forum non conveniens for fed ct or transfer to another state court - NOT for judicial district transfer.  FNC- court will decide based on

 

'Gilbert factors' -

1) private interest (where event occurred, ability to plead other parties, location of evidence) and

2) public interest (local people or events, if decided under local law or foreign law - if foreign then FNC appropriate.  

Term
Mas vs Perry
Definition

A party is domiciled in the state where (LAST) true, fixed, and permanent home is located or Intent to return

 

Married couple was spied on by landlord in a rented house for school in LA; married in MS and permanently lived in IN.  Tried to sue in LA federal courts but Perry said they were residents in LA so LA fed court not appropriate (no diversity).

 

DOmiciled is based on where (LAST) true fixed permanent home is and where resident intends to move back there.  Therefore the Mas were domiciled in IN and there is diversity for LA fed courts.  

 

Term
Louisville Railroad and Mottley
Definition

For a suit to arise under the Constitution and laws of the United States, a plaintiff must allege a cause of action based upon those laws or that Constitution.

 

Motley injured in railway accident; given lifetime free tickets.  In 1096 new law said no free transportation passes allowed, Mottleys sued specific performance of contracted settlement and undue takings clause of 5th.  

 

Plaintiffs "well pleaded complaint" must state a specific violation of constitution for fed court - not just a potential defense from defendant; therefore not a fed question in this case as there is not a violation of Con.  

Term
Gunn v Minton
Definition

A state court’s resolution of a hypothetical question of patent law is not substantial enough to mandate federal review.

 

patent case malpractice of a lawyer who was sued in fed court under the hypothesis that plaintiff would have gotten a patent if the experimental use was argued originally. 

 

Hypothetical argument is not a federal question, must be central to constitutional or diversity to be fed question 

Term
How to analyze jurisdiction
Definition

1) look at subject matter jurisdiction - 12 b 1 (fed question or diversity with $75K or more)

2) look at personal jurisdiction 12 b 2 (a) - is there a long arm statue and is the statute constitutional (intl shoe, burger king), (b) siezed property then is in rem or quasi in rem, (c) general (daimler, and others) or specific (level of contacts - hanson and mcgee) jurisdiction (if product liability only look at stream of commerce Asahi and Nicastero)

3) look at venue 12 b 3

Term
28 U.S. Code § 1367 - Supplemental jurisdiction
Definition

When joinder or cross/counterclaim results in more than 1 claim and fed court has jurisdiction over at least one of the claims, fed can have SJ over state based claim.  

 (a) Granting of sup Jurisdiction - must first have correct fed jurisdiction under 1331 32  AND "Com Nucl of Oper Facts" (CNOF)/STOO.

(b) SJ can be taken away when granted in joinder if original jurisdiction was based solely on diversity (1332) incorrectly OR if plaintiff joins state action 

 

(c) courts can decline SJ if novel or complex issue of State law OR if supplemental claim is the main issue

Term
28 U.S. Code § 1441 - Removal of civil actions
Definition

 the right of a defendant to move a lawsuit filed in state court to the federal district court that covers the state courts location.This is a general exception to the usual American rule giving the plaintiff the right to make the decision on the proper forum

 

Only when the initial filing could have either been fed or state court - must still have subject matter and diversity jurisdiction.  

 

Does not require plaintiff consent, BUT REQUIRES ALL DEFENDANTS TO AGREE (when there are multiple defs)

Term
United Mine Workers vs Gibbs 1966
Definition

United mine workers protest and obstruct Southern Labor Union for coal jobs; Gibbs cannot fufill his coal contracts and sues UMW under Fed Labor Management Relation Act and TN common law in the US DC for East TN.  Gibbs wins in Dist Ct, UMW appeals saying state case not valid in fed court

 

Fed Ct can hear a state court case when both actions arise out of the common nucleus of operative facts and essentially are one case.  (Same as STOO)

 

If state claim is vast majority of issue or is special state law, then should stay in state court.  

Term
Owen Equipment vs Kroger
Definition

Kroger (located in Iowa) husband dies in industrial accident, she sues Omaha Power (NE corp) in Fed Law and Owen (also in NE) based on IW state law. Fed Court due to diversity jurisdiction between IW and NE).  Owen was actually based in Iowa, raising the question if Fed ct can hear state law when there is no diversity issue. 

 

Fed ct can hear state cases that are ancillary or CNOF to a fed claim - but Kroger's state claim against Owen based in same state was not based on CNOF.  FUrthermore, had Kroger sued both Owen and Omaha power at the start, fed jursidiction would not be present due to lack of diversity.  Anti plaintiff and anti diversity

Term
Exxon vs Allapattah et al
Definition

10,000 Exxon dealers sue Exxon based on overcharging for fuel; some defendants damagers were below $75K limit.  Raises question whether all can sue even though diversity amount not met in all defendants. 

 

Only one named plaintiff is required to meet the amount in controversy question - can then joinder with other def whose damages do not meet amount in controversy question. 

 

Efficiency of the courts when using CNOF

Term
Notes on Supplemental Jurisdiction class 19 Nov
Definition

Examples where there is state and fed issues - can also include bankrupty and admiralty law:

  1. P in NY, sues person in PA who then brings in added def in PA as well
  2. P in oH sues 2 people in CA and CA people crossclaim against one another. 
  3. P sues for state and fed issue ( police abuse and A&Battery)

 

Term
How can a defendant change forum
Definition

IF Plaintiff chooses state court, defendant can use 1441 to change or FNC to dismiss

 

If Plaintiff chooses Fed and it is a proper venue, can use 1404

 

If plaintiff chooses fed and it is improper venue, can use 12(b)1, 2 or 3 to get to dismiss the case.  

Term
Fuentes v Shevin 1972
Definition

State must provide notice and opportunity to be heard before seizing property.  14th amend due process - meaningful time and meaningful manner. 

 

Fuentes bought stove and phonograph from Firestone, dispute over stove maintenance & defaulted on payments; repossessed but did not get summons or ability to answer - no notice of writ of replevin.   

 

Can take property when, 1) sig gov or public interest, 2) special need for prompt action, 3) state controls or regulates and conducts the siezure of property

Term
Mitchell v Grant 1974
Definition

Grant sells appliances to Mitchell on credit; judge ordered sequestration of appliances without hearing or notice based on affidativ that Grant believed Mitchell would dispose of the appliances if there was notice.  

 

Notice not required when clear showing of the claim and grounds for seizure.  

 

 

Kinda overrules Fuentes without saying that it actually does overrule fuentes.  

Term
North Georgia Fishing va Di Chem Inc 1975
Definition

Buying and selling $51K on credit, plaintiff signed affidavit saying they had reason to believe that def would dispose of goods bought, Court ordered siezure of bank account without hearing or notice. 

 

Fuentes only applies to a state law that only required "conclusory allegation" - does not apply if there is clear showing of the nature of the claim and ground relied upon such as Mitchell vs Grant.  THe GA law allowing the siezure was invalidated - just required "conclusory allegation" without further facts.  

 

Term
Connecticut v Doehr
Definition

Doehr sued for A&B, had prejudgement attachment for $75K against Doehr house.   In civil suit (not related to debtors) between private parties still requires 14th amendment due process. 

 

Look at Matthews balancing test between, 1) nature of private interest that is affected by the attachment, 2) possibility of defendant improperly losing use of property (risk of wrong seizure), 3) interest of party seeking the attachment. 

Bond also not appropriate most cases, also need exigent circumstances (destruction of attached property) to avoid pre judgment attachment

Term
Tripartate Division of Personal Jurisdiction
Definition

Tripartite division of types of jurisdictions -

Personal Jurisdiction

In Rem Jurisdiction

Quasi in Rem Jurisdiction (a) and (b)

In Rem (court asserts control of property and court determines who owns property - probate cases), Quasi in Rem 2 types - subtype 1 (Closer to in rem - foreclosures) and subtype #2 (used when you cannot get in persona - cts take control of property - severely limited/rare) and In Persona Jurisdictions (personal jurisdiction seriously expanded)

Term

Personal Jurisdiction Summary

2 Ways to Get Personal Jurisdiction

2 ways to get 

Definition

1) Def agrees to jurisdiction (consent, waiver, answering plea, serviced in state/tagging)

2) General Jurisdiction - def at home or HQ or prin place biz

 

2) Long arm statue IF it is constitutional based on due process of 14th amendment based on:

(a) minimum contacts (systematic and continuous activity AND cause of action from that activity)

AND still needs to pass

(b) 5 Balancing factors (see other card)

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