Term
| You need three things to have a valid judgment, what are they? |
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Definition
1) Personal Jurisdiction
2) Subject Matter Jurisdiction
3) Venue |
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Term
Removal Jurisdiction
28 USC §1441 and §1446 |
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Definition
| D can remove an action from state court to federal court provided that the federal court would have had PJ, SMJ and venue over the subject matter. The case could have only been field in Fedearl court at the time of removal. The rule only works in one direction-state to federal. This is only a tool for the D; the P cannot remove the case. |
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Term
| Removal Statutes has 2 exceptions: |
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Definition
1) Time Limitations
2) Home State Defendant Rule |
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Term
Transfer for Convenience
28 USC ยง1404 |
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Definition
This only applies to federal courts and allows a D to transfer the case to a difference federal court for convenience purposes.
a) The case has been properly filed by the P; therefore, if it is transferred, the law from the inital court will follow.
b) Pretty strong convenience factors msut be shown-the big ones relate to evidentiary issues-the vast majority of the evidence and/or witnesses are in another state and there will be difficulty getting them to come to court in the forum state
c) This is not limtied to Ds but it is usually the D that uses this statute. |
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Term
Transfer for lack of venue
28 USC §1406 |
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Definition
| Deals with a transfer due to improper venue. The court can either DISMISS the case, which is what the D is going to want, OR the court can choose to TRANSFER the case to a court that has proper venue. |
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Term
Transfer for Lack of Jurisdiction
28 USC §1631
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Definition
| This is talking about lack of PJ. The court case the case was filed in has no PJ BUT there is a case that does have PJ. Court can either DISMISS OR TRANSFER. |
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Term
| Doctrine of Forum Non Conveniens (Common Law) |
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Definition
| When using this, transfer is USUALLY not an option. The better thing to do is get the court to dismiss it so P can file in a court that is more appropriate. You are not complaining that venue, PJ, or SMJ are imporper. You are arguing that convenience factors outweigh the forum and taht there is another palce where the case can be brought. You have to show that these factors of convenience outweight P's choice of forum. |
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Term
COMPLAINT
Three basic things you should know about a complaint: |
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Definition
1) Statement of the claim-you have to state the elements of the complaint (i.e. negligence-negligently/causing damages) Allegations.
2) Statement of subject matter jurisidction: Short, plain statement providing grounds for court's jurisdiction.
3) Plead a demand for relief.
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Term
Answer to the complaint:
Summary and three ways to answer |
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Definition
There is one of two ways a D can respond to a complaint, a D must answer to a complaint if the D puts in a pre-answer motion and is denied, he then has to answer the complaint.
The D would # his paragraphs and or each allegation either:
1) Admit
2) Deny
3) Or state that there is insufficient knowledge on the allegation. |
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Term
| Four waivable defenses that must be asserted in the Pre-Answer motion |
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Definition
Lack of PJ
Lack of venue
Improper Service
Insufficiency process |
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Term
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Definition
| If a D gets a complaint and fails to respond to it in the given time period, a judgment against the D will occur. It has the effect of being an admission by the D. Howeer, provided that the D can show good cause, the D can get the default judgment lifted. |
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Term
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Definition
| If P decides that he made a mistake filing at that time, P can voluntarily dismiss his case unilaterally as long as the D has not filed his answer yet OR he can stipulate with the other party and agree to voluntarily dismiss. |
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Term
| FRCP 15 Provides for two ways you can amend your pleadings |
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Definition
As a matter of course-without a motion or without seeking leave from the court. You do it before a responsible pleading is filed OR if you're pleading is one that doesn't required a response. (20 days to do so) And you can only do it once.
With leave of the court-File a motion and ask the court to amend your m otion. Court are in favor of doing this but there are times they will deny. |
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Term
| Where joinder is NOT an issue |
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Definition
| If one plaintiff asserts a single claim against one defendant, and that is the entire scope of the alwsuit, there is no issue raised about joinder of claims and parties. Seldom is litigation-that simple. |
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Term
| Cardinal Rule of the Federal System |
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Definition
| Every claim against each party must be supported by an independant ground of subject matter jurisdiction |
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Term
| 2-Step Process to Simple Joinder |
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Definition
1) Analyze the facts to the rules
2) Have I satisfied the jurisdictional rules? |
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Term
| Joinder of Claims-Rule 18 |
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Definition
1) Permits a party to join as many claims as the party has against an opposing party, even if the claims are unrelated.
2) The rule is PERMISSIVE meaning that you DO NOT have to bring all the claims unless you want to.
3) Must satisify PJ, SMJ and VENUE |
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Term
| Rule 18 will not work if... |
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Definition
| The joinder would lead to jury confusion or other prejudice, Rule 42 (b) permits the court to sever the claims for separate trial. |
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Term
IN a diversity case where one plaintiff sues one defednant on two unrelated claims (one for 80K and one for 76K), the plaintiff may join the two claim in a single lawsuit.
This is an example of... |
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Definition
| Rule 18-Joinder of claims |
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Term
| Rule 13-Counterclaims and Cross-claims |
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Definition
Counterclaims (2 kinds):
Rule 13(a): Compulsory counterclaim
arises from the same transaction or occurrence that gave rise to P's complaint |
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