Term
|
Definition
| Dist. courts shall have original jurisdiction over civil actions that aries under the constitution, laws, treaties, of US |
|
|
Term
|
Definition
1. Amount in controversy greater than $75,000
2. Complete Diversity
3. Of Citizenship |
|
|
Term
| Well Pleaded Complaint Rule |
|
Definition
| Fed. question jurisdiction is based on the face of the plaintiff;s well pleaded complaint and the statement of the cause of action |
|
|
Term
|
Definition
| cause of action arises under law that creates it |
|
|
Term
| Smith exception to the homes creation test |
|
Definition
fed. element is embedded in the cause of action
1. necessarily raised
2. Disputed fed. issue
3. Substantial
4. non disruptive |
|
|
Term
|
Definition
| in any civil action of which the dist. courts have original jurisdiction, dist. courts will shave supplemental jurisdiction over all claims that are so related to claims in action within such OJ that they form part of the same case/controversy |
|
|
Term
|
Definition
| Remove to district/division where the state court it originally filed is located |
|
|
Term
|
Definition
| deadline to remove: 30 days after formal service of pleading/citation to remove case |
|
|
Term
|
Definition
1. any venue where any def. resides if all defs. reside in the same state
2. District where substantial part of events occurred
3. Wherever the court has personal jurisdiction over any def. if 1 and 2 fail |
|
|
Term
|
Definition
Fed. Rules of Decision Act
State law applies in federal diversity of citizenship case unless there is a conflicting constitutional provision, treaty, or federal statute |
|
|
Term
|
Definition
Rules Enabling Act
gives supreme court ability to create rules of practice/procedure |
|
|
Term
|
Definition
Wrongful Service
Problem with what was served:
4(c): need summons and complaint
4(a): name court and parties, directed to defendant, state name and address of p's attorney, state time the defendant has to appear, signed with court's seal
Problem with how served:
4(e): individual may be served by state's rules, or by following FRCP (personal service, leave copy at person's w/ someone of suitable age/discretion that also resides there, authorized agent) |
|
|
Term
|
Definition
Insufficient service of process
21 days to make rule 12 filing (motion or in answer) |
|
|
Term
|
Definition
Claim must be:
-short and plain statement of the grounds for the court's jurisdiction
-short and plain statement of claim
demand for relief/judgment |
|
|
Term
|
Definition
answer is the defendants' response to the complaint
(5) may also claim lack of information for an element/allegation. treated like denial as long as it was made in good faith |
|
|
Term
|
Definition
|
|
Term
|
Definition
-within 21 days after being served with process.
-waived service under Rule 4, w/in 60 days after request for waiver
-w/in 90 days for foreign defendant |
|
|
Term
|
Definition
more definite statement of claim
14 days
DO NOT EVER USE. YOU WILL LOOK LIKE AN IDIOT. |
|
|
Term
|
Definition
Pleading special matters: if a party does not have the capacity to sue or be sued, you must plead it. Cannot answer with denial or affirmative defense.
(b) fraud/mistake: must be stated with particularity as to who frauded how and when
(c) conditions precedent: defendants must specifically name the conditions precedent that have not occurred |
|
|
Term
|
Definition
Supplement any transaction, occurrence or event that has happened since the date of the pleading to be supplemented
(a)(1) pretrial amendments of pleadings- can only amend once. 21 days from answer or Rule 12 motion (whichever 1st)
(b) amendments during and after trial. based on an objection at trial, if at trial a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended |
|
|
Term
|
Definition
answer: 21 days from first filed
if outside window, must get permission from court or opponents to file amendment |
|
|
Term
|
Definition
Substantiality of Pleadings
(a) need signature and email address of attorney
(b) representations "these things are true" after inquiry. |
|
|
Term
|
Definition
Rule 15(c)
allows amended complaint to be treated as if it were filed at date of original pleading
-look at state's relation back statutes and statute of limitations
-amended claim or defense arises out of conduct set out in original pleading
-changing name of parties (misnomer, misidentification) |
|
|
Term
|
Definition
Entered when the defendant does not appear to defend the case
1. After a party has made all arguments and rests, you can make a motion for judgment as a matter of law→if denied, must re-urge or it is waived
2. Motions for judgments as a matter of law→when no evidence of essential elements of claim or defense |
|
|
Term
|
Definition
A judgment is final judgment from court, from which an appeal can be made-Disposes of all parties and claims
30 days to appeal |
|
|
Term
|
Definition
Exceptions:
When a claim has multiple plaintiffs/defendants/claims, and an order disposes some of those claims/parties, but not all→a court can enter a separate final judgment on those claims or parties |
|
|
Term
|
Definition
Interlocutory Appeals- immediately appealable
§1292(a) sets out a list of particular orders, in particular cases that are immediately appealable (don’t wait for final judgment)
§1292(b) in potentially any case, an order may be immediately appealable when:
a. the order involves a controlling question of law, as to which there is its foundational to the case, everything else depends on this question or if the court gets it wrong then everything else will be wrong
b. a substantial ground for difference of opinion
c. immediate appeal from order may materially advance the ultimate termination of the litigation |
|
|
Term
|
Definition
1. Pretrial motion, cannot make a motion to move for summary judgment once trial has commenced
2. Provides the defendant an opportunity to dispose of case without the expense of trying a case
3. If plaintiff files a motion, the burden is much higher→must prove all elements
4. If defendant files a motion→they only need to disprove one element |
|
|
Term
|
Definition
| affirmative defense that prevents a party from religigating a claim that was the subject of final judgment |
|
|
Term
|
Definition
| almost always an affirmative defense that prevents the relitigation of issues that have already been adjudicated |
|
|
Term
|
Definition
Counterclaima claim against a person who has already made a claim against him
Two types:
a. Compulsory counterclaim: a party must assert any counterclaim that arises out of the same transaction or occurrence as the claim already made against them.
b. Permissive counter claim: a party may assert any counterclaim that is not compulsory…it does not have to arise out of the same transaction or occurrence |
|
|
Term
|
Definition
Cross Claim
c. Claim against co-party that is an existing party who has not asserted a claim against him
d. must arise out of the same transaction/occurrence as the original claim/counterclaim |
|
|
Term
|
Definition
| if a party has properly joined a previous claim against a defendant, that party can also assert any other claim he has against the defendant |
|
|
Term
|
Definition
(a)(1) plaintiffs: parties may be joined as plaintiffs if they assert any right to relief that arises out of the same transaction or occurrence, or series of transactions or occurrences
(a)(2) defendants: parties may be joined as defendants if any right to relief asserted against them arises out of the same transaction or occurrence |
|
|
Term
|
Definition
| a defending party may, as a third-party plaintiff, assert a claim against a nonparty who is or may be liable to it for all or part of the claim against it. (joining 3rd party defendants) |
|
|
Term
|
Definition
Indispensible (compulsory) party rule
- Required party joinder
- Involves a party who is outside the suit as originally filed, but the court decides they need to be a part of the lawsuit for it to go on |
|
|
Term
|
Definition
Interpleader
(a) by a plaintiff: persons wit claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead.
(b) by defendant |
|
|
Term
|
Definition
| requires only minimal diversity between claimants |
|
|
Term
|
Definition
Intervener
- Haven’t been made a party but they ask to join |
|
|
