Glossary of non-mbe civil procedure
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- what is in personam jurisdiction?
- the basic question is " in what states can the plaintiff sue the defendant"
in personam jx exists when the forum has power over the person of a particular defendant.
it is based on the following situations:
1) defendant is present in forum state and is personally served with process.
2) defendant is domiciled in forum state.
3) defendant is a citizen.
4) defendant consents to jurisdiction.
5) defendant has committed acts bringing him within forum state's long arm statutes.
- what is in rem jurisdiction?
- exists when the court has power to adjudicate the rights of all persons in the world with respect to a particular item of property.
- what is quasi in rem jurisdiction?
- it is when the court has the power to determine the rights of specific individauls with respect to specific property within the court's control. (cannot be enforced against any other property belonging to defendant and done not bind defendant personally)
- what do states generally require for in personam jurisdiction?
- that defendant:
1) is present in the forum state at the time of service;
2) is domiciled in the forum state;
3) has given express or implied consent to jurisdiction; or
4) meets the requirements of the forum state's long arm or other statute.
- what does the constitution generally require for in personam jurisdiction?
- there must be sufficient minimum contacts so that the exercise of in personam jurisdiction over the defendant is fair.
CONTACTS, FAIRNESS, NOTICE
1. contacts: must show defendant (a) purposefully availed herself of the forum state's laws; and (b) knew or reasonably should have anticipated that her activities in the forum made it foreseeable that she may be haled into court there.
2) fairness: (a) if the claim is related to defendant's conduct with teh forum, a court is more likely to find that claim is fair and reaosnable (specific jurisdiction); or (b) if the defendnat engages in systematic and continuous activity in teh forum state, the court could find this activity sufficient basis for exercising in personam over any cause of action (general jurisdiction); and (c) whether the court will consider other factors (like whether forum is so gravely inconvenient to put def at severe disadvantage, forum state's legitimate interest in providing redress for its residents, plaintiff's interest in convenient effective relief, interestate judicial system's interest in fairness, state interest if furthering social policies.
3) notice: defendant must be notified of teh lawsuit by a reasonable method and given opportunity to appear and be heard.
summary of constitutional test:
My Parents Frequently Forgot to Read Childrens' Stories
Fair play and substantial justice
-relatedness of contact and claim
- what is required for in rem jurisdiction?
- the presence of property in teh state is constitutionally sufficient for teh exercise of jurisdiction over the property. persons whose itnerest are affected and whose addresses are known must at least be notified by ordinary mail.
- what are the two types of quasi in rem actions?
- 1) the first type involves disputes between parties over their rights in property within the state. the close connection ebtween the litigation and contact is the necessary minimum contacts.
2) teh second type involves disputes unrelated to the property. the mere presence of the proeprty within the state is not sufficient contact. there must be some other basis to exercise jurisdiction.
- what is required for fed diversity jurisdiction?
- 1) every plaintiff must be of diverse citizenship from every defendant; and
2) the matter in controversy must exceed the sum or value of $75,000 exclusive of interest and costs.
- if the court does not have diversity jurisdiction what might be another option?
- federal question jurisdiction. always ask: "is plaintiff enforcing a federal right?" if yes, then can go under FQ. Citizenship is irrelevant for federal question jx.
- when must diversity of citizenship exist?
- it must exist at teh time the suit is intsituted. it need not exist at teh time the cause of actiona rose adn is not defeated if parties move later.
- can a federal court have subject matter jurisdction over disputes between a citizen of a state and an alien? between two aliens?
- between state and alien: yes
between two aliens: no
- what is the interpleader exception?
- federal interpleader exception says where "minimal diversity" and an amount in controversy $500 or more is sufficient to confer jurisdiction.
- how do you determine an individual's citizenship?
- depends on the permanent home to which he intends to return. the citizenship of a child is that of her parents.
- how do you determine the citizenship of a corporation?
- a corporation is deemed a citizen of every state of its incorporation and also of its principal place of business. if exec offices are in one state and physical operations are in another, the state where physical operations occur is the principle place of business.
where corporation perofrms its operational activities in many states, teh courts have applied a "home office" or "nerve center" test and held the principal place of business is teh state where the executive offices are located.
- how do you determine teh citizenship of an unincorporated association?
- for diversity purposes, an unincorporated association is considered a citizen of each state of which any member is a citizen.
- for class actions, how do you determine citizenship?
- diversity is based on teh citizenship of the named members of teh class suing.
- how do you determine teh citizenship of a nonresident US citizen?
- a US citizen living abroad is not a citizen of any state and is not an alien.
- what is the doctrine of ancillary jurisdiction (aka supplemental jurisdiction)
- a court may entertain claims taht could not by themselves invoke federal question jurisdiction or diversity jurisdiction if the claims arose from a common nucleus of operative fact as teh claim that invoked the federal subject matter jurisdiction.
in short: this test is met by claims taht arise from the same transaction or occurence (T/O) as the underlying claim.
the limitations on supplemental jx are:
1) a nonfed, nondiversity cannot be heard in fed court if asserted by a plaintiff
2) in a diversity of citizenship case AND
3) would violate complete diversity
- for intervention of right, must there be an independent basis for jurisdiction?
- yes. but traditioanlly a person seeking to intervene did not have to show an independent basis for jurisdiction as long as requirements for intervention were met.
- in substitution of parties, which party's's citizenship controls?
- the original party
- if the party is replaced, whose citizenship controls?
- the replacement party's citizenship controls and diversity could be lost. party replacement happens when the plaintiff sues the wrong party.
- what is a cross-claim?
- a cross claim is a claim by one co-party against another. it may be asserted if the claim arises from the same transaction or occurrence as the underlying dispute.
if the cross-claimant does not have an independent subject matter basis (diversity of citizenship or fed question jx), the cross-claim may nonetheless be asserted in federal court through ancillary form of supplemental jurisdiction.
- for the jurisdictional amount requirement in federeal courts, may aggregation of separate claims occur to meet the $75,000 requirement?
- a plaintiff may aggregate all her claims against a single defendant. a plaintiff who has an action against several defendants can aggregate her claims against them only if the defendants are jointly liable to the plaintiff.
several plaintiffs can aggregate their claims only if they are seeking to enforce a single title or right in which they have a common or undivided interest..."
- can a court have supplemental jurisdiction over claims not exceeding $75,000 in diversity cases?
- yes. claims taht don't meet the amount in controversy requirement may invoke supplemental jurisdiction if they arise from the same nucleus of operative fact that invoked teh diversity of citizenship jurisdiction. however supp jx cannot be used to override complete diversity requirement.
- can a defendant's counterclaim be combined with the plaintiff's claim to reach the jurisdictional amount?
- no. a compulsory counterclaim need not meet the jx amount requirement as teh court can use supp jx. however a permissive counter claim (arising out of an unrelated transaction) must have an independent jx basis and must meet the jx amount requirement.
- who can seek removal? where and when?
- only defendants may seek removal. and only if it meets diversity or federal question. the case can be removed to the federal district embracing the state court in which the case was originally filed. and must remove no later than 30 days after service of the first removable document.
If it has been filed more than a year, we cannot remove.
a defendant who files a permissive counterclaim in a state court probably waives teh right to remove. filing a compulsory counterclaim in state court probably does not waive the right to remove.
- describe the erie doctrine?
- in diversity cases (not FQ), fed court must apply state substantive law.
to determine if it's substantive or procedural, courts use teh "outcome determinitive test"-- a state law rule that substantially determines the outcome of the litigation must be applied. if a fed rule is arguably procedural it will be applied.
fed court in diversity-->apply fed procedural law
but-->substantive law used must be of teh state the fed court sits.
- what are the exceptions to diveristy of citizenship jurisdiction?
- federal courts will not exercise diversity jurisdiction over domestic relations or probate proceedings because they are neither "actions at law" nor "suits in equity."
- for erie, if there is an arguably procedural federal directive on point, what do you do?
- fed law applies if there is a procedural federal directive
- for erie, if there is NOT an arguably procedural federal directive on point, what do you do?
- is the matter procedural? if yes--> apply fed law. if not-->state law applies.
- where must teh federal question appear?
- must appear as part of the plaintiff's cause of action. the existence of a defense based on federal law will not create federal question jurisdiction.
- can a federal question arise merely fromteh fact a corporate party was incorporated by an act of Congress?
- no, unless the US owns more than one half of the corporation's capital stock.
- what is pendent (supplemental) jurisdiction?
- if a plaintiff has both fed and state claims, teh fed court has discretion to exercise pendent jurisdiction over the claim based on state law if the two claims derive from a common nucleus of operative fact and are such that a plaintiff "would ordinarily be expected to try them all in one procoeeding."
pendent jx and ancillary jx are now codified under "supplemental jurisdiction"
the court may exercise pendent jx over the state claim even if the fed claim is dismissed on the merits. (but state claim should also probably be dismissed if the fed claim is dismissed before trial).
- under what situations can pendent parties jurisdiction arise?
- 1) the plaintiff sues more than one defendant;
2) there is fed jx over the claim against one defendant, and
3) the claim against the second defendant does not invoke fed question or diversity of citizenship jx. the cliam against the second def must invoke supp jx if it arises from the same nucleus of common fact against the defendant.
- is there an amount in controversy requirement in federal question cases?
- when is jurisdiction of the federal courts exclusive of teh state courts?
- 1) bankruptcy proceedings;
2) patent and copyright cases;
3) many cases where the US is involved;
4) cases whre consuls and vice consuls are sued as defendants;
5) antitrust cases;
6) actiosn against foreign states removed from state courts to federal court;
7) postal matters;
8) internal revenue service cases;
9) securities exchange act cases; and
10) admiralty cases
- what is subject matter jurisdiction?
- after you know that P will sue D in a particular state, you need to figure out if it's in state court or in federal court.
subject matter jx is the power of the court to adjudicate the matter before it.
if federal, is there diversity of citizenship or federal question.
- distinguish venue from subject matter jurisdiction.
- subject matter jx is the power of the court to adjudicate the matter before it. venue relates to the proper district in which to bring the action. subject matter jx is a question of power or authority; venue is a question of convenience. subject matter jx cannot be conferred by agreement, venue can. a court can have subject matter jx without having proper venue.
- what are rules regarding where venue in civil actions in the federal courts is proper?
- 1) a judicial district where any defendant resides, if all defendants reside in teh same state;
2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
3) if there is no district anywhere in the US that satisfies 1 or 2,
(a) for actions absed solely on diversity, a judicial district in which any defendant is subject to personal jurisdiction at teh time the action is commenced; or (b) for actions NOT based solely on diversity, a judicial district in which any defendant may be found.
- for federal venue purposes, where is the individual's residence?
- where the person is domiciled.
- for federal venue purposes, where is a defendant corporation deemed to reside?
- any jx which it is subject to personal jurisdiction.
- for federal venue purposes, where is the residence of an unincorporated association?
- where it does business.
- can venue be waived by parties?
- even if venue is proper, where can the court transfer the case?
- for the convenience of the parties the court may transfer the case to any court where it could have originally been filed. the standard to be used for transfer of venue is "interest of justice." the transferee forum must have subject matter and in personam jurisdiction over the defendant and venue must be proper.
- what is the law applicable upon transfer?
- if original venue was proper-->apply law of the state in which transferor court sits.
if original venue was improper, apply law of the transferee court's state.
- when can an action filed in state court be removed to federal court?
- 1) if the case could have originally been filed in a federal court; and
2) for cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed.
jx is tested at the date of removal.
- can a defendant remove on teh basis that he has a defense grounded in federal law? why?
- no because the existence of a federal defense is insufficient to confer original federal question jurisdiction.
- who may exercise the right of removal?
- only defendants. if more than one defendant, all defendants must join in the petition for removal.
- where does venue lie?
- venue lies in the federal district court "embracing the place where such [state] action is pending.
- is an action removable when jx of the fed court is based on diversty and one of the defendants is a citizen of the state in which the state action was brought?
- no. action not removable.
- what is the procedure for removal?
- 1) time: the notice of teh removal must be filed within 30 days after defendant receives notice
2) the plaintiff can file a motion to have the case remanded to the state court (which can be done if there is no fed jx). the fed court has discretion to remand a case to state court once all fed claims hve been resolved leavin gonly state claims where there is no diversity jx.
- when must notice of removal be filed?
- must be filed within 30 days of teh date defendant receives a copy of the initial pleading.
- if a case becomes removable, for how long does the case remain removable?
- the case may be removed within 30 days of teh date it becomes removable, but nore than one year after it was brought in state court.
- when can a defendant remove the whole case?
- if the case contains a separate and independent claim based on a federal question.
- can a case based on diversity be removed if any defendant is a citizen of the forum state/
- where can a defendant remove a case to?
- removal is to the federal district court whose territory encompasses the state court.
- must jurisdiction have been proper in the state court for there to be removal?
- no. but a federal court must have jurisdiction over the case.
- what is the rule regarding pending state proceedings
- a federal court generally is prohibied from enjoining a pending state court proceeding unless expressly authorized by statute or when necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
- describe the doctrine of absention.
- grounds: a federal court will abstaina nd require a litigant to seek relief in a state court (while retaining jx): (a) if teh state law is unclear and could be itnerpreted to avoid teh federal constitutional question; or (b) if there is a state administrative regulatory plan that would be disturbed by the federal court taking the case.
Procedure: after the federal court abstains, the litigants must present their issues to the state court in light of their federal contentions. the fed ct will ordinarily stay the fed action rather than dismiss.
- when can federal intervention occur?
- federal intervention on constitutional gorudns may occur if the federal plaintiff can demonstrate:
1) great and immediate irreparable injury;
2) bad faith in the prosecution of state action; or
3) harassment or other unusual circumstances calling for federal equitable relief.
- how is an action commenced?
- an action is commenced by filing a complaint with the court.
- how is service of process made?
- any perosn not a party to the action who is at least 18 years old may serve process. personal service left the defendant's usual place of abode or service upon an authorized agent of the defendant is valid service of process.
- how are parties served outside the state
- the court will also acquire personal jurisdiction over parties served outside teh state: (i) under the state's statutes and rules for extraterritorial service; (ii) if they are third party defendants or required to be joined for just adjudication, if served within 100 miles from teh place where the action is pending; and (iii) when out of state service is permitted by fed statute (interpleader)
- what time periods may never be extended?
- renewed motion for judgment as a matter of law (10 days), motion to amend judgment (10 days), and motion for a new trial (10 days)
- what is the purpose of a preliminary injunction?
- to preserve the status quo
- what is teh purpose of a TRO?
- if a irreparable injury will occur before the hearing on the preliminary injunction can be held, a party may seek a temporary restraining order to preserve the status quo until the hearing.
- what three ocnditions are required for a TRO?
- generally the adverse party must be given notice, but a TRO can be imposed without notice for a max of 10 days if three conditions are met:
1) the moving party states specific facts in an affidavit or verified complain of teh irreparable injury she will suffer if teh TRO is NOT granted;
2) the moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice should not be required;
3) the moving party provides security to pay for any damages incurred by the adverse party if teh court later finds he was wrongfully restrained.
- what must a complaint state when pleading a cause of action?
- 1) grounds of fed jx;
2) a short statement of teh claim showing that the pleader is entitled to relief; and
3) a demand for judgment for relief, which may be in the alternative.
- what are the defenses to pleadings? (rule 12b)
- the defendant may file a motion and raise any or all of teh following defenses:
1) lack of subject matter jx;
2) lack of personal jx;
3) improper venue;
4) insufficiency of process;
5) insufficiency of service of profess;
6) failure to state a claim upon which relief can be granted; or
7) failure to join an indispensable party.
defendant must raise defenses 2-5 first time he files a motion or in his answer. if he doesn't, he waives them.
defenses 6-7 can be made at any time prior to trial or at trial.
defense 1 can be raised at any time until all appeals have been extinguished
- What may a party do when tehre is a vague pleading?
- a party may move for a more definite statement before responding to a pleading that is vague (rule 12e)
- what may a party do when there is an insufficient defense or any redundant, immaterial or scandalous matter?
- before responding to a pleading, a party may motive to have these things stricken (rule 12f)
- what must the answer contain?
- the answer must contain a specific denial or admission of each averment of the complain or a general denial with specific admission fo the averments admitted.
a failure to deny constitutes an admission.
- what happens if no rule 12 motion is made?
- defendant who was formallys erved msut present an answer within 20 days after service.
- what happens if a rule 12 motion is made and the court does not fix anotehr time?
- the responsive pleading must be served within 10 days after the court's denial or postponment of teh motion.
- what is the defintion of a compulsory counterclaim?
- if teh claim arises from teh same transactio or occurrence as teh plaintiff's claim, it must be pleaded as a counterclaim or will thereafter be barred.
fed ct has supplemental jx over a compulsory counterclaim that otherwise doesn't meat diversity jx or fed question jx.
- what are teh requires for a permissive counterclaim?
- if must meet the jurisdictional requiremens for filing a claim in federal court.
- can a party set out inconsistent claims or defenses?
- yes regardles of consistency
- what does rule 11 require?
- it requires that when an attorney is presenting to the court a pleading, motion or other paper that she certifies to the best of her knowledge after reasonable inquiry that
1) the paper is not presented for an improper purpose;
2) the legal contentions are warranted by existing law and are not frivolous arguments for a change in law;
3) the allegations and factual contentions either have or are likely to have evidence; and
4) denials of factual contentions are warranted or are reasonably based on lack of info and belief.
- what does rule 11 require in terms of sanctions?
- the court has discretion to impose sanctions against a party who presents a paper to teh court in violation of the above requirements. the matter may be raised in either of two ways:
1) the court on its own my enter an order describing teh mater that appears to violate rule 11 and direct proponent to show why sanctions should not be imposed or
2) the opposing party may serve a motion for sanctions and if no withdrawal or correction within 21 days, may file for sanctions with teh court.
sanctions can be monetary or nonmoneytary directives.
- what is compulsory joinder?
- a party is "needed for just adjudication' if:
1) complete relief cannot be given to existing parties;
2) disposition in his absence may impair his ability to protect his interest in the controversy; or
3) his absence would expose existing parties to a substantial risk of duble or inconsistent obligations.
if a party needed for just adjudication is amenable to process and her joinder will not destroy diversity or venue she must be joined.
- what hapeens when joinder is not possible but a part is needed for just adjudication?
- the court must decide whether the action can proceed in party's absence or dismiss the case.
court must consider teh following:
1) whether the judgment in teh party's absence would prejudice him or the existin parties;
2) whether the prejudice can be reduced by shaping the judgment;
3) whether a judgment in teh party's absence would be adequate; and
4) whether teh plaintiff will be deprived of an adequate remedy if the action is dismissed.
- what is required for permissive joinder?
- 1) some claim is made by each plaintiff and each defendant relating to or arising out of the same series of occurences or transactions; and
2) there is a question of fact or law common to all parties.
- what is the rule for joinder of claims?
- a plaintiff can joint any number and type of claims against ad efendant; when multiple plaintiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved. ap laintiff may join two claims if success on the first is prereq for the second.
when jx is based on a fed question claim, a nonfed claim can be joined only if it is regarded as part of teh same case or controversy as the fed claim
- what are the requirements for a class action?
- rule 23: a class action is proper if:
1) the class is so numerous that joinder of all members is impracticable;
2) there are questions of law or fact common to the class;
3) named parties' interests are typical of the class;
4) named parties will adequately represent the interests of the absent members of the class; and
5) one of the following three situations is present: (a) risk of inconsistent results with separate actions; (b) defendant has acted or refused to act on grounds applicable to class and injunctive or declaratory relief is appropriate for the class as a whole; or (c) common questions of law or fact predominate and a class action is superior to alternative methods.
NUMEROUS CLASS and
COMMON QUESTIONS and
FAIR AND ADEQUATE REP
RISK OF INCONSISTENT RESULTS or
INJ OR DECL RELIEF APPROPRIATE or
COMMON QUESTIONS PREDOMINATE AND CLASS ACTIN IS SUPERIOR TO ALTERNATE METHODS OF ADJUDICATION.
NCTF + RIC
- when is notice to all members of teh class required?
- only in common question suits so that class members can opt out. the notice must state:
1) nature of action
2) definition of the class
3) class claims, issues or defenses; and the binding effect of a class judgment.
- what does the class action fairness act say
- subj matter jx is established if any class member is of diverse citizenship from any def;
2) amount in controversy is in aggregate over $5 million; and
3) there are at least 100 members.
any defendant can remove the case from state to fed court.
- when must there me mandatory decline of jx provided by the CAFA?
- 1) when more than 2/3 of the members of plaintiff class are citizens of teh state in which action was filed;
20 a def from whome significant relief is sought is acitizen of that state and
3) the principal injuries were incurred in the state in which action was filed.
there is discretionary decline of jx if more than 1/3 but less than 2/3 of pla are citizens of teh state in which action was filed and primary def are also of that state.
- what is required for a shareholder derivative suit?
- a shareholder can sue to enforce a right of teh corporation that those in control of the corporation refuse to assert if he can allege and prove:
1) he made a demand on teh directors or that a valid excuse exists for his failure to do so
2) he was a shareholder at the time of teh transaction complained of and
3) he can fairly and adequately reprsent the interests of teh shareholders.
- describe the nature of an interpleader
- an interpleader suit is instituted by a person in the position of a stakeholder to require the adverse claimants to determine which has the valid claim to the stake. it applies if separate actions might result in double liability against the stakeholder.
- what does rule 22 interpleader require?
- 1) complete diversity ebtween teh stakeholder and all adverse claimants and in excess of $75,000 in issue, or
2) a federal question claim. normal service and venue rules apply.
- what does section 1335 interpleader require?
- only minimum diversity between the claimants (one claimant must be diverse form teh other) and $500 in issue. Service may be nationwide and venue is proper where any claimant resides.
- how do you know whether to use rule 22 or section 1335 for interpleader?
- Rule 22-->regular rules
Statutory Interpleader-->simpler standards
- when may intervention of right be available?
- intervention of right is available whenever teh applicant claims an interest in the property or transaction taht is the subject matter of the action and the disposition of the action may impair his ability to protect that interest
- when may permissive intervention be available?
- permissive intervention is available when teh applicant's claim or defense adn teh main action have a question of fact or law in common; no direct personal or pecuniary interest is required. it must be supproted by its own jx grounds.
- can a defending party implead a nonparty who is or may be liable to him for any part of a judgment that the plaintiff may recover against him?
- yes. the defending party can also join any other claim sshe has against third-party defendant, but these need some jx basis. the third party def may assert defenses to the pla's original claim as well as to the third party liabilities. court may sever any third party claim to be tried separately if that is just.
- what is a cross claim?
- co-parties may assert claims against each other that arise out of the same transaction or occurence as teh main action by filing cross-claims.
- describe the duty of disclosure.
- rule 26 requires parties to disclose without being asked, info "then reasonably available" to other parties about their case.
rule 26 requires 3 types of disclosure:
1) initial disclosure (names contact info for those likely to have discoverable info, copies of documents parties may use to support its claims or defenses unless solely for impeachment, computations of damages, insurance agreements)
2) disclosure of expert testimony
3) pretrial disclosures (witnesses expected, list of documents all required 30 days before trial)
- if a party fails to comply with an order to provide discover, what may the court do?
- 1) order teh matters to be treated as admitted;
2) prohibit the party from spporting or opposing designated claims or defenses;
3) striek pleadings, stay or dismiss action or render default judgments;
4) hold the delinquint party in contempt.
- if a party fails to attend his own deposition or fails to answer any interrogatories, what can a party do?
- a party may move for immediate sanctions.
- when can automatic sanctions be given?
- they can be given to a party who without substantial justification fails to disclose information as required under rule 26 or who fails to supplement or amend discovery responses.
- when can a deposition be used?
- 1) to impeach the testimony of the deponent as a witness;
2) for any purpose if court finds deponent dead or at distance greater than 100 miles from place at trial;
3) for any purpose if deponent is an adverse party.
- what must a party requesting a jury trial do?
- 1) he must file a written demand with the court and serve it on the parties. failure to make a demand within 10 days after the filing of the leading in which the jury-triable issue arose constitutes a waiver.
- where legal and equitable claims are joined in one action involving common law issues, which claim should be tried first?
- the legal claim to the jury, then the equitable claim to the court.
- for the procedural device that may terminate a case: PRE ANSWER MOTION RULE 12b (what are the circumstances required)
- circ: addresses the following preliminary matters: defects in subject matter jx, personal jx, venue, process, and service of process; failure to state claim; failure to join needed party.
- for the procedural device that may terminate a case: VOLUNTARY DISMISSAL BY PLAINTIFF (what are the circumstances and timing required)
- circumstances: without prejudice once as a matter of right; also possible by stipulation or court order
timing: if dismissed as a matter of right without prejudice, must be done before defendant files answer or motion for summary judgment
- for the procedural device that may terminate a case: MOTION FOR JUDGMENT ON THE PLEADINGS(what are the circumstances and timing required)
- circumstances: on the face of teh pleadings, the moving party is entitled to judgment. treated as motion for summary judgment if accompanied by outside matters.
timing: after pleadings are closed but not so late as to delay trial.
- for the procedural device that may terminate a case: SUMMARY JUDGMENT(what are the circumstances and timing required)
- circumstances: no genuine issue of material fact and moving party is entitled to judgment as a matter of law. may support by pleadings, affidavits, discovery materials.
timing: defendant--anytime; plaintiff--anytime after 20 days from commencement of action, or service of motion for summary judgment by adverse party.
- for the procedural device that may terminate a case: JUDGMENT ON PARTIAL FINDINGS(what are the circumstances and timing required)
- circumstances: in a nonjury trial, the judge may enter a judgment as a matter of law if she makes dispositive partial findings on the claim.
timing: during trial, once the judge has heard sufficient evidence to make dispositive findings and all parties have been fully heard on the issue.
- for the procedural device that may terminate a case: MOTION FOR JUDGMENT AS A MATTER OF LAW (DIRECTED VERDICT)(what are the circumstances and timing required)
- circumstances: evidence viewed in light most favorable to motion's opponent leads reasonable person to conclusion in favor of moving party.
timing: after opponent has presented case but before submission of case to jury.
- for the procedural device that may terminate a case: RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW (JNOV)(what are the circumstances and timing required)
- circumstances: the verdict returned could not have been reached by reasonable persons. moving party must have previously sought judgment as a matter of law at close of evidence.
timing: within 10 days after entry of judgment.
- if the court limited to what relief is sought in the pleadings?
- when can an appeal be taken?
- an appeal may be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from. upon the entry of an order based on such post-trial motions, a new 30 day period begins to run.
- describe the interlocutory appeals act
- under this act, review is discretionary when:
1) the trial judge certifies that the interlocutory order invovles a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the other may materially advance the ultimate termination of the litigation; and
2) the court of appeals then agrees to allow the appeal
- describe the collateral order rule
- if the claim or issue is separable from adn collateral to the main suit, and is a claim too important to require deferring appellate review, it may be classified as a jdugment in a separate proceeding and thus be appealable.
- describe when the final order rule may be circumvented.
- only in exceptional cases.
- describe the doctrine of res judicata (claim preclusion).
- (same cause of action)
once a final judgment on teh merits has been rendered on a particular cause of action, the plaintiff is barred from trying teh same cause of action in a later lawsuit.
the modern way to define "cause of action" is: to require assertion of all claims arising out of the same transaction or occurrence that is the subject matter of a claim asserted by the plaintiff.
- describe the doctrine of collateral estoppel (issue preclusion).
- same issue, different cause of action. judgment for the plaintiff or defendant is conclusive in a subsequent action on a different cause of action between them, as to issues actually litigated and essential to the judgment in the first action.
- which persons are bound by a judgment?
- parties, privies to parties, and persons whose interest are represented are bound by a judgment. nonparties are not normally bound.
- what are the four tests usually applied to determine whether a stranger may rely on a prior judgment in jurisdictions where.
- 1) was the issue decided in the first case identical to that in the second?
2) was there a final judgment on teh merits
3) did the party against whom the judgment is to be used have a fair opportunity to be heard on the critical issue and
4) is the posture of the case such that it would not be unfair or inequitable to a party to apply collateral estoppel.
if all these questions are answered affirmatively, collateral estoppel will normally be upheld.
- with regards to amending pleadings, is there a right to amend?
- yes. plaintiff has a right to amend once before defendant serves his answer. defendant has a right to amend once within 20 days of serving his answer.
also when there is amendment after the statute of limitations has run, amended pleadings will relate back if they concern teh same conduct, transaction or occurrence as the original pleading.
- what is required to change a defendant after the statute has run?
- this will relate back if:
1) it conerns teh same conduct, transaction or occurrence as teh original;
2) the new party knew of the action within 120 days of its filing; and
3) she also knew that, but for a mistake, she would have been named originally. this applies when P sued teh wrong D the first time but the right D knew about it.
- what is impleader?
- a defending party wants to bring in someone new (third party defendant) for one reason: the TPD may owe indemnity or contribution to the defending party based on the underlying claim.
There is a right to implead within 10 days after serving answer. after that need court permission.
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