Courts of general jurisdiction, can determine all civil actions unless exclusive jurisdiction given to other courts

Authenticating

SPECIAL RULE: CLERK OF COURT MUST STAMP

THE CASE NO. ON EACH COPY OF SUMMONS

AND COMPLAINT

Courts of Limited Jurisdiction, needs to meet all jurisdictional requirements

Diversity Cases

Federal Question

US as Party

Complete diversity Rule- no P is citizen of same state as any defendant

and

Amount in controversy exceeds $75K- good faith claim, unless clear to a legal certainty that claims cannot aggregate to $75K.  Must be $75K against the same Defendant.  Even if multiple Ps as long as a single, undivided interest

1) Physical Presence

and

2) Intent to make it your home

Determined at time of filing

Corporations

1) State of Incorporation and

2) Principal Place of Business- headquarters or major production or service activity

Well Pleaded Complaint Rule: as plead, is it based on federal law?  

Arises under the constitution, laws or treaties of the US.  

Federal court must have SMJ for ALL claims.  If not, then try Supplemental J

No real SMJ, but because it is part of the same case or controversy joined with other claim(s).  

So related to other claim as to become part of the same transaction or occurrence.  

TEST: Common nucleus of operative facts.  

Even if part of same transaction or occurrence (common nucleus of operative fact), NO SUPPLEMENTAL IF

1. In federal court based on diversity, and

2. Claim B is a claim

By the plaintiff, against parties other than Diverse D (by impleader, intervenor, or joinder),

and INCONSISTENT WITH COMPLETE DIVERSITY RULE.   

If 1) federal claim is dismissed early in proceedings, or

2) State law claim is complex, or

3) State law claim would substantially dominate time.  

All Ds join in a request for removal to federal court, allowed when case could be maintained by federal court (diversity, federal question)

No removal for diversity one year after filed,

D files notice in federal court with all documents served to date, Within 30 days of case becoming removable.  

To federal court that covers area of state ct

When in federal court on diversity or supplemental jurisdiction, use laws of state in which they sit (federal procedure though)

Conflicts- Federal statute overrules state law, 

Federal judge made law conflict with state law?

Apply Erie: (outcome determinative test)

1) If federal rule affects outcome, it is substantive

2) If parties would choose a forum based on the different laws, it is substantive

3) If applying different laws would be inequitable, likely substantive

If Substantive- apply state law.  

Comply with State Statutory Requirements, and

Federal Due Process Requirements

WI Personal Jurisdiction- General

(always have to be served process, not necessarily personally served though- only in Marriage)

1) By service (natural person) served in WI

2) Domiciled in WI

3) WI Corp or LLC

4) Substantial Activities, not isolated, in WI

1) Action arises from a WI act or omission, causing injury anywhere

2) WI injury- use of products, or solicited or service activities carried on in WI

3) Ks for goods or services in WI

4) Related to property in WI

5) Director or Officer of a WI Corp related to that role

6) Insurance- in WI when injured, or resident

7) Marital Actions- P resides in Co where filed and spouse resided in WI in marital relationship for 6 continuous months of past 6 years, D is personally served

Federal Due Process Requirements

Minimal Contacts Jurisdiction

TEST: Does the defendant have certain minimal contacts with the forum state to satisfy

Fair Play

Substantial Justice

Either Specific, General, or By Service in State

Look at

Purposeful availment

Relationship between contacts and cause of action

Foreseeability of a claim- "stream of commerice, w/ knowledge"

Burden on D on litigating in forum

Interest of the forum

Ps interest in litigating in this forum

Due Process

Specific 

v

General 

Jurisdiction

Specific- cause of action arises out of the contacts with the forum state

General- substantial on-going contacts w/ forum state are so pervasive that any claim can be asserted there 

Proper Notice and

Property located in WI

Notice and Service of Process

2-Part Test

Serving the Summons and Complaint

Statutory/ Rule Requirement

Due Process Requirements- must notify interested parties of the pendency of the action 

Send Summons and Complaint to D with a Waiver form, gives them 60 days to respond

If no response within 30 days, D pays for service

Personal delivery at residence by non-party, over age 18, and

Pursuant to laws of state where dist ct is located, or

Pursuant to laws of state where served

Service on Corporations and Associations in US

Pursuant to laws of state where district court is located.

Pursuant to laws of state where served.  

By delivery to an authorized officer or agent.  

Summons must contain all relevant information regarding the case and parties.  Timing for response and consequences of not doing so.  

Authenticated (w/ special Clerk of Court stamp) and signed copy of summons and complaint served on Defendant

Disability- same as below, except under 14, or general disability- parent or guardian too

Regular- 1) Personal service preferred, Substituted service if rzbl diligence used and personal service can't be made

2) At Ds usual place of abode w/ a competent family member, informed of contents, or

pursuant to law of state where service made

Personal Service on Corps

Partnership

1) To authorized officer, director or managing agent, or

leaving at office w. person in charge of office

2) If w/ rzbl diligence fails, by publication

with mailing

Each partner individually

If Defendant is known, same as personal jurisdiction.  If not

after rzbl diligence, by publication.  

Who can Serve

proof of service

Adult, resident of state where service made, not a party

Proof- server must sign, time, place and manner of service, and deliver proof to party for whom service was made.  Proof must be filed with court.  

Serve attorney unless ct orders otherwise, to attorney personally, leave at office, mail, or fax (need authorization for electronic communications)

Where claim arose, where property is located, where D resides or does substantial business, or if none of the above, where P decides.  

Dane Co for actions against state.  

When venue improper- upon timely motion, at or before first responsive pleading unless could not have been discovered

When venue proper- in the interest of justice or for convenience of parties

By affidavit unless court orders hearing- can do oral arguments by phone.  

WI- Forum Non Conveniens

Switching to Another State

Ct can in its discretion decline jurisdiction, otherwise

File with or before answer, Waive SoL defense and consent to suit in alternative forum- Court orders a Stay of Proceedings- retaining jurisdiction for 5 years with right to amend order

Diversity only- where any D resides, where substantial part of claim arose, if none of these, where D is subject to personal jurisdiction

All others- where any resides, where substantial part of claim arose, or where any D is found.  

Must have been proper to bring to new venue originally,

When improper- in the interests of justice or may dismiss

When proper- may transfer based on convenience to parties, convenience of witnesses and interest of justice.  

Statement of SMJ (federal only)

Statement of the claim- short plain statement showing pleader is entitled to relief

Notice pleading- enough to allow a meaningful response

Allegations of fact that claim asserted is plausible on its face.

WI- identify transaction or occurrence out of which claim arose and short plain statement showing pleader is entitled to relief.  

WI tort claims- demand for relief cannot specify amount of money seeking.  

Special matter to be pleaded w. particularity- Fraud and Mistake, Special Damages

Short plain statement showing pleader entitled to relief and the transaction or occurrence out of which claim arises

Tort claims- cannot state amount seeking

Libel and Slander- state words which give rise to the action.

Pre-Answer Motion or Answer

Timing

WI Response time- 20 days

45 for torts, against state or insurance companies

Federal 21 days, or 60 if waiver of service

Motion for More Definite Statement

Motion to Strike

Matters of Abatement (12(b)(6))

Lack of Jurisdiction, Improper venue, insufficient process, insufficient service of process, failure to join indispensable party

WI- lack of capacity to be sued, res judicata, SoL, Another pending action for same case

Matters Regarding Merits

Failure to state a claim upon which relief can be granted, Judgment on Pleadings, Summary Judgment

Defenses waived if not in first motion

Not Waived

PJ, Insufficiency of Process (or service), Improper Venue, and (WI ONLY) same action pending

The Answer

Timing

WI- 20 days after service,

45 days for torts, insurance or state party

10 days after ruling on pre-answer motion

Federal- 21 days after service, 60 if service waived

14 days after ruling on motions

1) Pre-answer motions

2) Respond to allegations of complaint

3) Admit or deny

4) Affirmative defenses and avoidance

Of right- before responsive pleadings, or within 21 days of serving pleading

With leave of court- freely granted as justice requires

WI- within 6 months after summons and complaint filed

Relation back- amendments relate back to original filing to avoid SoL IF arise from same transaction or occurrence

Changing Parties in Amended Pleadings

Only relates back if same transaction or occurrence, and within time allowed for commencing action- the new party

1) receives notice of action

and

2) party knew or should have known that but for a mistake, the action would have been brought against him.

Signature and Certification: attorney signs all docs, certifying (a continuous duty)

1) Rzbl (under the circumstances) inquiry into claims has been conducted 

2) NO improper purpose

3) Warranted by law, and

4) Facts in doc have evidentiary support.  

Can be served and not filed, withdrawn within 21 days before filed.  

Sanctions are discretionary and may be levied against attorney, firm, or party.  

Joinder

Permissive

v

 Compulsory

Permissive- 1) same transaction or occurrence, and 2) common Qs of law or fact

Compulsory- when feasible, court will order if:

1) complete relief cannot be afforded w/o absentee

2) absentee's interest will be harmed if isn't joined

3) absentee claims an interest which subjects a party to multiple obligations

No personal jurisdiction, or absentee would destroy diversity in a diversity claim.  

Bulge Rule- even w/o minimal contacts, PJ if served within 100 miles of courthouse, and D is a 3rd party D or an indispensable party

absentee deemed necessary, but joinder not feasible, Ct must decide whether in equity or in good conscience, case should proceed or be dismissed.  

1) Alternative forum available?,

2) Likelihood of prejudice,

3) Can ct shape relief to avoid prejudice

All claims arising by derivation, subrogation, assignment

If party is joined, can either participate, move for dismissal, let other party represent interest (w/ written waiver of participation- agree to be bound)

Counterclaims

Federal v. 

Wisconsin

Permissive- D may assert any claim against P

Compulsory- D must assert any claim that arises out of same transaction or occurrence

Except: when claims pending in another jurisdiction, or

cannot join necessary parties.

WI- NO COMPULSORY COUNTERCLAIMS, but res judicata may still prohibit claims being brought later.  

A claim against a co-party, arising out of same transaction or occurrence.

Never compulsory.

Impleader

Timing

A Co-D brought in by D because Co-D is liable for all or part of the claim.  

(Indemnity or Contribution)

Federal: of right within 14 days of answer

at court's permission otherwise

WI: 6 mos after service

at court's permission otherwise

Intervention

(3rd party wants to join- P or D)

Of right, when (all three):

1) claims an interest in property in dispute

2) action will impair ability to protect that interest, 

3) interest not adequately represented by parties

Permissive if court finds that claim has at least one common question with pending action.

Interpleader

(D brings in all potential Ps to avoid multiple liabilities)

Rule Interpleader: Complete diversity still required, normal service rules, 75K, 

Stat Interpleader: minimal diversity, $500+, Nationwide service

Numerosity- too numerous for regular joinder

Commonality- shared Qs of law or fact

Typicality- named reps and claims/defenses typical

Representation-reps will fairly, adequately rep class

+ 1 of these 3

1) Prejudice- risk of inconsistent results, impairing interests of other class members

2) Injunction/Declaratory judgment- class of people benefitted by relief

3) Damages- Seeking $, common questions, and class treatment best way to do it

Court can then certify the class if these factors are met. 

Common Interest

Fair representation by named parties

Joinder Impracticable

Manageability

DP: Class members interest's must be fairly and adequately protected

Discovery

Required Disclosures

No discovery prior to 26(f) conference unless by agreement or by court order

WI- parties can arrange between selves unless ct involvement required

Identity of Individuals

Documents, Things, Electronically Stored Things

Computation of Damages

Insurance Agreements

Expert Witnesses (90 days before trial) ID and Written Reports

Pretrial Disclosures- doc and exhibit lists

List of Witnesses

Discovery Requests

WI- relevant to subject matter of action

Fed- relevant to any claim of defense 

Both- anything rzbly calculated to lead to admissible evidence

WI- insurance terms and amt are discoverable

Not testifying- no discovery absent exceptional circumstances

Testifying- Deposition allowed, required disclosure, WI can use interrogatories, otherwise use motion and order to get more info

Ct uses to limit, regulate, or deny discovery to protect parties from expense, embarrassment, undue burden.  

Before protective order, must certify that attempted to resolve issue between parties

1) Obtainable from less burdensome source, duplicative

2) Party already had ample opportunity to obtain info

3) Burden outweighs benefit

E-Discovery

Need not provide info that is not reasonably accessible, ct can still order discovery if party shows good cause.

Enforcement of Discovery Rules

Against Attorney

Motion for PRotective Order

Motion to Compel Discovery (or sanctions)- fails to answer completely, objects, no deposition attendance.

Overruled objection to discovery- pay ct costs and att fees

Violating order to compel- sanctions and costs, maybe contempt

Failure to respond- sanctions and costs

False denial of request to admit- costs of proving true

Failure to supplement or make required disclosure-sanctions + costs and maybe can't use at trial, IF justified or harmless, party may still be able to use at trial.  

Establishment order (make true)

Strike pleadings of Offending party

Disallow evidence

Dismiss Plaintiff's Case

Default Judgment for P

Party- serve written notice

Non-party- notice and subpoena

Org- notice and subpoena stating subject, they pick the deponent

Pre-action deposition only if petitioner presently unable to commence action and petitioner expects to be a party describing role of discovery, reason for it, facts expected, names of other's involved and request for order.  

30 days to respond (45 in WI)

Non-party- subpoena duces tecum

30 days in federal, 45 in WI

written answers or objections, biz records can also be provided in lieu of answers

By court order:

1) Party's health is in actual controversy, and

2) Good cause

Must provide report to OP in WI for it to be admissible

By right until answer served, after by court order or stipulation only

Involuntary dismissal- failure to prosecute, to comply with rules and orders, Rule 12 grounds

With prejudice except for Rule 12 grounds or court orders otherwise

Against D for failure to defend or comply with orders/rules of court

Procedure: 1) Notice, 2) Entry by Clerk

Federal- showing of good cause and viable evidence

WI and federal- Fraud, Misconduct, Mistake, Reversed, Void Judgment

Summary Judgment

Federal: up to 30 days after discovery ends, response within 21 days, 14 days to respond again

WI: 8 months after filing, 20 days motion prior to hearing, response 5 days before hearing. 

1) No genuine issue of material fact, and

2) Movant entitled to judgment as a matter of law.

*motion can be partial to one of the causes of action.  

Evidence weighed in favor of nonmoving party

Once movant demonstrates nonexistence of a genuine issue of material fact, burden shifts to nonmovant to produce evidence showing existence of a genuine issue of material fact.  

Money damages (legal remedies)- jury trial

Equitable remedies- trial to the court

Mixed cases- try legal claims to a jury first

Failure to demand jury trial is a waiver

Federal- in writing within 10 days after service of last pleading

WI at or before scheduling conference, writing or orally on record.  

Federal- 6-12, unanimous, can be less # or less than unanimous if parties agree to it. 

WI- 6-12, 5/6 

for cause (unlimited #), peremptory (up to 3), based on race and gender are impermissible.  

written requests for instruction at conference at close of evidence.

A party must object to the instruction, or failure to give, to preserve for appeal.  

JML- Directed Verdict-Granted when evidence or an essential issue permits only one conclusion

By D at close of P's evidence, or by either party before jury.  

WI- its called dismissal on grounds of insufficiency of evidence. 

TEST: No credible evidence to sustain finding in favor of party

Post-Trial Motions

JML- Notwithstanding the verdict-within 28 after judgment.  

To preserve right to bring must bring JML before jury.  

WI- within 20 days after verdict- verdict is proper but for reasons in record judgment for movant.

Motion to change answer- where jury answered Q wrong on judgment form (lack of sufficient evidence to support answer).

For directed verdict- if made earlier and not ruled on, renew after verdict.   

Errors in Trial, Contrary to Law or Weight of Evidence, Excessive or Inadequate Damages, 

Newly Discovered Evidence- couldn't have been reasonably discovered earlier.

In the interest of justice.  

Remittitur- excessive damages 

Additur- too small 

Appeal 

Timing

Federal- 30 days after judgment

WI- 45 days.  

Only reviewable from final orders. 

Interlocutory appeals only for class certification, possession of property rulings.  

In WI- if it will materially advance the litigation, or protect from irreparable damage, or clarify an issue of substantial importance.  

Claim Preclusion

Res Judicata

Final Judgment 

On the Merits

Same Claim (transaction or occurrence)

Same Parties

Issue Preclusion 

Collateral Estoppel

Same Issue

Actually Litigated and Decided

Final Judgment

Essential to Prior Determination

Mutuality of Parties Not Required

(WI) Fundamental Fairness

Defensive Non-Mutual-always

Offensively- unless unfair because

1) Plaintiff could have easily joined and waited instead, 

2) D had no incentive to fully litigate

a) D has new procedural safeguards unavailable in previous action, or

b) multiple previous actions with inconsistent results.