Glossary of CIV PRO II

Start Studying! Add Cards ↓

There are four motions you can file before trial to dismiss a case, they are:
1. Rule 12b6 - Motion to dismiss

2. Rule 12c - Motion for judgment on the pleadings.

3. Rule 56 - Motion for summary judgment.

4. Rule 41b - Motion to dismiss for failure to prosecute.
Who may file a Rule 12b6 motion to dismiss?
When may the defendant file a Rule 12b6 motion?
After the complaint but prior to the filing of an answer.
What will the judge look at when determining how to rule on a Rule 12b6 motion?
Ruling will be based solely on the complaint.
What is the purpose of a Rule 12b6 motion?
To screen out invalid cases.
In the M.R. Civ. P., what rule is Judgement on the pleadings?
Rule 12c
What is a Judgment on the pleadings also known as?
Directed verdict.
Who may file a Rule 12c - Motion on the pleadings?
Defendant or Plaintiff
When is a Rule 12c - Motion on the pleadings made?
After the close of pleadings (after answer and complaint have been filed).
What will the judge look at when making his ruling on a Rule 12c Motion on the pleadings?
Answer and complaint only.
In what context will the judge look at Rule 12c motion on the pleadings?
In the light most favorable to the person seeking to go to trial.
What is Prof Ford's buzzword for Rule 12c motion on the pleadings?
"Person who wants fight another day gets all the breaks while the person who wants to avoid trial swims up stream."
What happens if the judge looks at anything other than the complaint and answer in a Rule 12c - Motion for judgment on the pleadings?
It is automatically converted to a Rule 56 - Motion for summary judgment.
In what case did the plaintiffs action in attaching a K to his complaint pursuant to Rule 10c, convert a Rule 12c motion to a Rule 56 Motion?
Kinion v. Design Systems
In what case did the D attach affidavits, which the P ignored, and the court erroneously granted Rule 12c motion, which should have been converted to a Rule 56 Motion?
Gebhardt v. D.A. Davidson Co.
What is a Rule 56 motion?
Motion for summary judgment?
Who may file a Rule 56 - Motion for summary judgment?
Defendant or Plaintiff
When may a Defendant file a Rule 56 - Motion for Summary judgment?
When may a Plaintiff file a Rule 56 - Motion for summary judgment?
After 20 days from filing of complaint, after close of pleadings.
In a Rule 56 - Motion for Summary Judgment the party making the motion bears two burdens, they are:
1. That no genuine issues of material fact exist.

2. That they are entitled to judgment as a matter of law.
In a Rule 56 - Motion for summary judgment, after the moving party has met their burden the burden then shifts to the non-moving party to:
Prove that genuine issues of fact do exist.
What may the judge look at when making his ruling on a Rule 56 Motion for Summary Judgment?
Much the same materials that would be available at trial: Depositions, affidavits, interrogatory answers, etc.
In what case did the court improperly grant a rule 56 motion for summary judgment where the moving party failed to attach affidavits to meet his burden proving that no genuine issues of material fact existed.
Mathew v. Glacier General
What case illustrated in what context the judge must evaluate a Rule 56 motion? That context is?
Rogers v. Swingly: In lieu of public policy favoring trial on the merits, the court must view a Rule 56 Motion for summary judgment in a light most favorable to the non-moving party.
What is a Rule 56 Motion for partial sumamry judgment also called?
Interlocutory summary judgment.
What is the effect of a Rule 56 Motion for Partial Summary Judgment?
It reduces the case to its essential issues, eliminating uncontested facts and issues.
When can you appeal a courts ruling on a Rule 56 Motion for Summary judgment? What case was this illustrated in?
After the trial is over. Schultz v. Adams
What is Prof Ford's buzzword for an appeal of a Rule 56 motion for Summary judgment?
"Gathering all the errors into one basket and appealing them at one time"
The moving party should submit a breif in support of its position with regard to the following motions:

a. Motion to dismiss for failure to state a claim because the SOL expired;

b. Motion for judgment on the pleadings;

Answer is D, brief always filed in support of motion.
The moving party should submit an affidavit in support of its position with regard to the following motions:

a. Motion to dismiss for failure to state a claim because the SOL expired;

b. Motion for judgment on the pleadings;
Answer is C; A is wrong because the only thing viewed by the court is the complaint; B is wrong because if you attach anything to a Rule 12c motion it is converted to a Rule 56 Motion; D is wrong by default.
According to International Shoe v. Washington, how much contact does the defendant have to have with the forum state in norder to be subject to personal jurisdiction?
Due process requires only that in order to subject a defendant to a judgment in personam, if he not be present within the territory of the forum, he have certain minimum contacts within it such that the maintenance of the suit does not offense "traditional notions of fair play and substantial justice."
According to the Erie Doctrine, a federal court must apply state substantive law in:

a. all federal cases

b. Federal question cases only.

c. Diversity of citizenship cases only,

d. both b and c.
Answer is C.
What is jurisdiction?
The power of the court to render a binding decision in a given case.
What does Ford refer to in determining whether jurisdiction exists?
Jurisdiction triangle.
What is the jurisdictional triangle?
All three elements must be present in order for a court to have jurisdiction. The three sides of the triangle are:
Subject Matter Jurisdiction
Personal Jurisdiction
Issue Jurisdiction
When can SMJ be addressed?
At any time, even at appeal.
What happens when you have an SMJ issue in terms of SOL?
The clock continues to run on SOL where you have an incorrect SMJ.
With regards to Issue jurisdiction; Ford says:
"Issue jurisdiction is no problem because it is governed by the pleadings.
What gives the court Issue jurisdiction?
The issues you write into the complaint.
What is the policy behind issue jurisdiction?
Due process by giving notice so party can prepare to argue issue being decided. Trial on the merits.
How is the courts issue jurisdiction limited?
Limited to what is in the pleadings.
How is issue jurisdiction differentiated from the powers of the court to grant any relief it sees fit?
Issue jurisdiction limits the court only to those issues which are found in the pleadings. However, under Rule 54c the court may grant whatever relief it sees fit, even when that relief is NOT asked for. (Garland v. Garland, "bad son case" where son throws momma off her ranch.
What is SOL according to Ford?
An honorable defense.
What are the two ways that one may raise an SOL defense?
1. Affirmative defense per Rule 8c.
2. Rule 12bg - Motion to dismiss.
What happens if you miss the SOL?
If you miss the SOL it is a complete and absolute bar to recovery.
What are the three policy considerations behind having a SOL?
1. Repose D - Unfair to make D wait forever for impending lawsuit; allows D throw out the box at some point.

2. It gives enough time to the P to properly prepare for a lawsuit.

3. Judicial efficiency - The court wants to hear cases that are recent and not ancient.
What is Ford's terribly origninal buzzword for SOL?
If you miss it you are SOL.
What is the most common form of attorney malpractice?
When does the SOL clock stop running?
When you file the complaint with the clerk of court.
If you are under eighteen and you are torted, when does the SOL clock begin?
Upon your eighteenth birthday.
What is the formula for calculating SOL?
Date complaint filed - Date claim accrued (date all elements came into existence)
What are the 2 exceptions to the SOL?
1. Where the D actively concealed the facts.

2. Where the P did not know of the injury under a due dilligence standard.
Where would you look to determine the SOL for a given case?
SOL statutes.
What case defines SOL as an "Honorable defense" in MT?
Anaconda Mining v. Saile
What case demonstrates in MT that SOL does not begin to run until all of the essential elements are present.
Heckmaman v. Northern Pac. RR. (RR built bridge which caused flood several years later. Elements were not present until actual flooding occured.)
What case demonstrates that the SOL clock does not being running until a minor turns eighteen?
Cosgrife v. Cosgrife (Child was abused by father, did not bring case until 3 years later.)
What was the rule from Johnson v. St. Pats?
Generally the cut off for SOL cases is 3 years, but the absolute cut off is 5 years. (Sponge left in body, not discovered until 10 years later).
For SOL, in order to toll the clock, a D's concealement of facts/fraud msut rise to the level of?
Active concealement.
If P could have discovered D's draud/concealment under ordinary diligence, than ford says:
"If you see the tail you must follow it."
What is the general venue rule in MT?
The proper place for trial for all civil actions is the county in which the D's reside at the commencment of the action.
When must a change of venue motion be made in MT?
Upon first appearance in court.
When must a change of venue be made in FED?
Either first appearance or may be saved for answer.
What happens if verdict is issued in the wrong venue?
Verdict is still valid.
What is venue?
The place in which the trial will be held.
Who must make a motion for change of venue?
Defendant. Judge may never change venue.
Must venue be reexamined when new D's are enjoined?
Boucher v. Steffes (Motion for change of venue is determined by status of parties and pleadings at the time moving party appears in an action.)
What is the Rule 11 violation that MT has yet to rule on with regard to venue?
Whether a P brings action against weak D in a multi-D claim, just for P benefit in having court hear case in weak D's county.
In MT in a tort case, with regards to venue, where must a claim be filed?
1. Either in county where D resides.

2. In County where tort occured.
With regards to a physician who perscribes medications from which a tort arises, where is the proper venue. The place where the prescription occured, or the place where the damages occured.
Howard v. Dooner Labs (The place where the prescription and diagnosis occured.)
In a tort action against a nonresident corporation in MT where is the proper venue?
1. County where tort committed.

2. County where P resides.

3. County in which D's registered agent resides.
In a tort action againsnt a nonresident individual in MT, where is the proper venue?
1. County where tort committed.

2. County in which P resides.
What is the SOL for legal malpractice?
3 years from act or date of discovery, but no more than 10 years.
What is Rule 41b?
Motion for failure to prosecute.
In what case was the D finally released under Rule 41b for failure to prosecute?
Westland. v. United Grain
What factors will the court use to rule on a Rule 41b motion - failure to prosecute?
1. P diligence in prosecuting

2. Prejudice to D

3. Availability of alternative sanctions

4. Did judge warn P of danger of dismissal.
What are the three types of Personal jurisdiction?
In Personam - Action against person.

In rem - Action against property

Quasi-in rem - Action against person through property
Where do most problems arise in Personal Jursidiction?
When state courts try to excercise personal jurisdiction over non-resident D's.
What type of defense is personal jurisdiction?
Rule 12h1
How can a rule 12h1 defense for personal jurisdiction be waived?
By invoking the jurisdiction of the court.
What is the policy behind invokoking personal jurisdiction in state courts?
States prefer to bring in non-residents into their local courts because if one person must be inconvenienced by traveling to anothers residence it is better that it be the D who at the least stands accused of an unlawful act.
What is the policy behind invokoking personal jurisdiction in federal courts?
Founding fathers did not want a country of squabbling provinces, so it gave non-residents the same basic rights as residents within each state.
What was the first case to allow for long-arm jurisdiction?
International shoe v. Washington
In Montana what was the old rule regarding where you could bring a suit?
You could bring a suit in any of the 56 counties.
What was the old rule which is no longer used with regard to Personal Jurisdiction and in what case did this come from?
Pennoyer v. Neff (PJ over non-resident ONLY if physically found in the state.)
What is the current test for Personal Jurisdiction and in what case did this come from?
Minimum contacts test: Personal Jurisdiction found if D activities in the state have been substantial systematic and continuous.

International Shoe v. Washington
What are the three requirements for Personal jurisdiction under the Minimum contacts test?
D's activities in state have been:



T/F. A defendant may waive the D of personal jurisdiction?
What type of jurisdiction do Federal courts have? General or limited?
What type of jurisdiction do state courts have? General or limited?
What type of jurisdiction do tribal courts have? General or limited?
General (if on exam), but per Ford today it is very unclear.
What are the two variables on the Minimum Contacts Test for Personal Jurisdiction?
1. Nature and quality of contact between D and forum state.

2. Relationship between lawsuit and those contacts.
When answering SMJ what are three jurisdictions and what is the answer route you should use in Ford's exams?
Federal, tribal, and state. You should dispose of the cases that don't apply first, and then hit the ones that do.
Subject matter jurisdiction is what type of jurisidiction?
To determine who has SMJ where do you look?
1. States own Const.

2. States statutes

3. Federal limitations
What limits states SMJ?
1. Federal statute/const.

2. States statute/const.

3. Local rule action.
State ex rel. Bennet v. Bonner
MT Constitution does not impart governor with executive power to remove or order judges.
The right to sue and the according right to recovery in any state is called what? What is the exception to this rule?
Transitory Cause of Action; exception is where the state itself has limited its right to hear a case.
Can you waive SMJ?
Can you waive PJ?
What are the two types of cases where Local Action Rules apply?
1. Ownership of real estate - only state in which property is located can hear the case.

2. Internal governance of corporations - only heard within state in which corp was incorporated.
What are the two ways to skirt the local action rule?
1. Quick claim deed - judge can say sign title over or go to jail.

2. Adjudicate interest in property (NOT the Property itself).
Montana has limited its own SMJ by statute with regards to child custody cases; a MT court can hear a child custody case when?
1. Childs home state is MT.

2. Child has significant connenctions to MT.

3. Child was abandoned in MT.

4. No other state has clear jurisdiction.
In what case did the courts apply its own local action rule in the determination of a child custody case? What state ultimately had SMJ over the children?
In re marriage of Oltersdorf; California.
What is MT Open Court Policy?
Courts shall be open to every person, and speedy remey afforded for every injury to person or property.
What is forum non conveniens?
Equitable rule allowing courts to decline excercise of jurisdiction over transitory causes of action when it believes the action may be more appropriately heard elsewhere.
In what case did a injured RR worker bring suit in MT, and the D moved the court to dismiss via forum non convenis?
Labella v. Burlington Northern RR.
The Federal court has what type of jurisdiction?
What is limited SMJ?
The power to hear only certain types of suits.
What part of the constitution limits the Federal courts SMJ?
Article III, Section II.
What are the Federal courts limited to hearing in terms of SMJ?
1. Federal question cases.

2. Diversity of citizenship cases where the minimum dollar value exceeds $75,000.
In what cases the Federal court enjoy exclusive jurisdiction?
1. Controversies between states.

2. Admiralty/maritime cases.

3. Patent cases.

4. Bankruptcy cases/proceedings.
What is concurrent SMJ?
Where dollar value exceeds $75,000 and where the D can be sued in state or Federal court.
Although this was later turned over by Erie, what case held that the Federal courts were to follow only state procedural law and not common law in diversity cases?
Swift v. Tyson.
What were the facts in the Erie v. Tompkins case?
P walking by train tracks IN PA at night, struck as train passed by a protrusion from the train itself. P brings suit in FED court. D wants FED to use state law which holds RR not liable to tresspassers.
What is the rule from the Erie v. Tomkins case?
Federal procedural law applies to state substantive law.
What is state substantive law?
Statutory and common law
What was the policy behind the Erie v. Tompkins decision applying Federal procedural law to state substantive law?
1. Uniformity - Wanted fed courts to "mirror" state courts thereby preventing forum shopping.

2. Fairness - prevents discrimination of outsiders by states.
In what case was SOL addressed as to Fed SMJ and what was the holding?
Guarantee Trust v. New York; Held that where you can't determine whether or not state law is subtantive or procedural, look to see if it is outcome determinative. SOL is, so state SOL applies.
In FED SMJ Diversity cases, for what must the FED court use State law?
1. Burden of proof.
2. Conflict of laws.
3. Neg.
4. Contributory neg.
5. SOL.
When, and from what case, is state law trumped by Fed law?
Byrd v. Blue Ridge - Federal law applies when the issue is part of the essential character or function of the federal court system.
What civil procedure rules would use in Federal court? If there is a conflict with state/fed rule of civ pro who wins? What case?
Federal rules; Federal rules alawys wins; Hanna v. Plummer
What rules of civ pro apply in Fed appellate court? What case? Why?
Burlington Northern RR v. Woods; Waste of time to do otherwise.
When is removal to Federal court appropriate and from what case did this come from?
Arco v. Dept of Health:

1. Diversity of citizen case.
2. Federal preemption of law (trumping state.
3. Federal question.
What is removal?
D removes case from state to fed.
Can you remove from Fed to state? Tribal to Fed?
No; No.
What is remand?
Where the P tries to move case out of FED back to State because removal was improper.
What does removal require?
Nothing, it is automatic.
What does remand require?
A hearing.
How long does a D have to remove a case to Fed court?
30 days.
Who may motion to remove a case to FED court?
DEF Only.
What is the holding from Williams v. Lee, where a non-I operating a trading post on a res. tried to sue I in state court?
RULE: State courts do NOT have SMJ over Indians on Res because I Res. are an independant and sovereign nation.
Can you challenge SMJ from Tribal to state court?
Never. Only Tribal to Fed because of soveriegn nation status.
Summarize Tribal jurisdiction as it stands today?
If the P is non-I and the D is an I and it is on the REZ. than tribal court has exclusive jurisdiction.

If it is an I P, and an I D on the rez than likely tribal court has exlusive jurisdiction.

If I P, but non-I D on REZ but on STATE land, DOUBT exclusive tribal court authority.
What is the rule from Lambert v.Ryozik
Enrolled members of the tribe are also state citizens, therefore they can bring legal action in state court against Non-I.
What is the rule from Wilson v. Marchignton?
Principles of comity apply as to whether or not a district court should recognize and enforce a decision of a tribal court.
Summarize Strate v. A1
Traffic accident on state highway running through I Rez. Plaintiff is an Non-I but sues in tribal court. HELD: Tribal courts do not have subject matter jurisdiciton over non-I on non-I land within a Rez. unless:

1. Consensural relationship with tribe.

2. Health, safety, welfare of tribe.
McGee v. International life insruance holds that:
If a claim arises out a of a single isolated contact with the state, minimum contact is established for PJ.
Perkins v. Benguet Mining holds that:

Phillipines case with corp officers in Ohio.
If a DEF activities are substantial, continuous, and systematic, where the claim arises is immaterial to satisfy PJ. The more contact with the state, the less relation needed for minimum contacts.
Williams v. Lee
Federal government used to have a strong policy recognizing tribal sovereignty.
National Farmers Union.
No longer strong policy recognizing tribal sovereignty, not an exhaustive rule which allows tribes to determine their own SMJ based on Fed law, Fed treaty, fed const.
What case brought about the Montana rule with regards to tribes?
Strate v. A-1
Under Strate tribal sovereignty does not extend to non-members of the tribe unless:
1. Person entered into a consensual relationship with tribe.

2. Conduct of the non-indian affects the political integrity, economic security, health or welfare of the entire tribe.
T/F. Montana still excercises authority over indians because they are still citizens of the state?
What is the Iron Bear test?
Test to see if the state should excercise authority over Indians:
1. Whether fed treaty preempts state jurisdiction.
2. Whether there is intnerference with the state govt.
3. Where the tribal court has excercised jurisdiction in a manner sufficient to preempt state jurisdiction.
What is the simmons Test?
Simmons test applies if the person does not satisfy Inernational shoe:

1. Person must avail himself of the benefits of the state.

2. Claim must arise from those activities.

3. Excercise of PJ must be reasonable.
With regards to PJ and the simmons test, what is reasonable?
Jackson v. Kroll:

Factors to be considered in deciding what is reasonable:

1. Extent of DEF purposeful interjection into MT.
2. Burden on DEF in defendinng in MT.
3. Extent of sovereignty of DEF state.
4. MT intnterest in adjudication the dispute.
5. Most efficient resolution of controversy
6. Importance of MT to PL interest in convenient and effective relief
7. Existence of alternative forum.
At the very least how many reasonablness factors must you satisfy for PJ?

Add Cards

You must Login or Register to add cards