1If a PL seeks SMJ via CAT(Fed ?) or DJ then PL must also establish a justiciable claim (meet SCRAM) and must SCRAM if they don't...
SCRAM
S- Standing
C- Case or controversy
R- Ripeness
A-Abstention
M-Mootness
--> exceptions: VCR
2Minimum Contacts, Fair Play & Substantial Justice
minimal contact with PELICANS doesn't make you Best Friends
PELICANS
PURPOSEFUL
EVIDENCE
LAW
INITIATION
CAUSE
ALTERNATIVE
NATURE
STATE'S
BURDEN
FORESEEABILITY
PURPOSEFUL availment - Hanson v. Denckla
EVIDENCE - location of witnesses and evidence
LAW - choice of law (forum shopping?)
INITIATION - did DF initiate contact with forum state?
CAUSE of action - where did cause of action arise?
ALTERNATIVE forum available? fair & convenient?
NATURE & quality of activities - systematic vs. sporadic, direct vs. indirect, dangerous activity?
STATE's interest in providing a forum for its residents and protecting health & safety concerns
BURDEN of parties - economic cost, risk of multiplicity of suits, relative burden on DF FORESEEABILITY - WW Volkswagen (likely they'd be "haled into court")
3Federal Question Jurisdiction is present if the case involves:
CAT
C- The US CONSTITUTION
A- ACTS of Congress
T- TREATIES signed by the united states
4Challenging The Complaint
DF PICT VALID reasons to challenge the complaint.
PICT VALID
motion for judgment on the PLEADINGS
INSUFFICIENCY of process (motion to dismiss)
failure to state a CLAIM (motion to dismiss)
no TRIABLE issue of material fact exists as a matter of law (motion for summary judgment)
improper VENUE (motion to transfer)
ALLEGATIONS are irrelevant, impertinent, scandalous (motion to strike)
LACK of jurisdiction over subject matter or person (motion to dismiss)
failure to join INDISPENSABLE party (motion to dismiss)
motion for more DEFINITE statement of claim against DF.
5Article III of the constitution and US congress limit the type of cases federal courts can hear to:
SAD-J
S- Supplemental Jurisdiction
A- Arising Under Jurisdiction (Fed. Question)
D- Diversity
J- Justiciable Claims (SCRAM Claims (?))
if SAD-J is lacking, court doesn't have SMJ
6there are three "VCR" exceptions to the mootness doctrine
VCR
V- If there is a voluntary, but not permanent change in position
C- Class Action isn't totally moot (1 person has case/controv.)
R- Repetition --> PL will be subjected to same injury again
7Diversity and Supplemental Jurisdiction require federal courts to apply state procedural law and not FRCP for PIPS
PIPS
P- Privileges
I- Incompetency of Witnesses
P- presumptions and interferences
S- Statute of limitations
8a federal court has discretion to decline supplemental jurisdiction to hear a claim related to a pending federal claim b/c of COP
COP
C- state law claim presents a COMPLEX/novel issue
O- the federal court dismissed the ORIGINAL (Cat/DJ) claim on the merits
P- State law claim PREDOMINATES over the federal claim.
9VIP must be raised in a motion to dismiss if such motion is made, or in an answer, if not, the defense is waived:
VIP
V- Improper VENUE
I- INSUFFICIENT service of process
P- Lack of PERSONAL jurisdiction
10Requirements for Certification of Class Action
DECANT vintage 23(b) before you pour it into a class.
DECANT
DEFINABLE
ECONOMY
COMMONALITY
ADEQUACY
NUMEROSITY
TYPICALITY
23(b)
roughly DEFINABLE class of which PL is a member
judicial ECONOMY served
claims have COMMON legal theory or arise out of same transaction or occurrence
named parties must ADEQUATELY represent class
potential PLs too NUMEROUS for joinder
claim of named PL must be TYPICAL of the class
23 B - action must fall within one of three categories of FRCP 23 (b)
11Discovery Devices
DADIES discover what you don't want them to know.
DADIES
Depositions (written or oral)
Admissions of facts
Documents related to cause of action (if for good cause)
Interrogatories
Examination (mental or physical)
Subpoena (duces tecum)
12To find sufficient minimum contacts over a DF for MOP, the DF must be CHILI
CHILI
C- DF CONSENTS to jurisdiction in the Forum State
--> through SAM
H-the state where the corporation or individual is at HOME (corp--> Nerve Center, individual--> domicile)
I - state where a corporate DF was INCORPORATED
L- DF is a non-domiciliary, but court has LONG-ARM jurisdiction (--> RIOT & 3-S)
I- DF , non-domicilary, is served IN STATE (Gen. Jurisdiction)
13jurisdiction over corporations
To obtain independent personal jurisdiction over DF corporation, DIAL DC
DIAL DC
DF is a domiciliary
In-state service on a non-domiciliary
Agent of corporation served (must be designated)
Long-arm jurisdiction over non-domiciliary
Doing business in-state
Consent to state's jurisdiction by DF
14When is long arm JRX established via minimum contacts?
Even a DEER can have minimum contacts
DEER
DERIVES substantial revenues from goods used/consumed or services rendered in-state
ENGAGES in persistent course of conduct in-state
EXPECTS (or reasonably should expect) tortious acts would have consequences in-state AND DF derives substantial revenues from interstate/int'l business
REGULARLY solicits in-state business
15in determining whether a motion for Forum Non Convenience should be granted, the court will consider whether the case should be tried HERE
HERE
H- HARDSHIP on the DF and the court if the forum non convenience motion is denied
E- location of the EVIDENCE in the case
R- RESIDENCE of the parties
E- location of the EVENT
16To obtain valid Procedural Jurisdiction, 14th amendment due process clause requires the DF have MOP
MOP
M- some MINIMUM contact with the forum state
O- an OPPORTUNITY to be heard in the suit
P- been PROPERLY served with process
17Federal court can assert personal jurisdiction over a DF when he/she consents to jurisdiction by SAM
SAM
S- STIPULATING to Jurisdiction in a K, letter or email
A-serving an ANSWER and failing to include a MOP jurisdictional objection
M- making a pre-answer MOTION to dismiss but failing to include a MOP jurisdictional objection
--> if fail to include VIP then waives defense
18Long Arm Jurisdiction (Specific Jurisdiction) arises from a RIOT in the state
RIOT
R- non-domiciliary DF owns, uses or possesses REAL property within the state (& PL's claim arises out of it)
I- DF commits a tortious act IN state to PLs person or property (or economic injury)
O- DF commits a tortious act OUTSIDE the state, causing injury in the state (Note: 3-S for strict PL cases)
T- DF TRANSACTED business in the state
19for an act committed outside the state causing injury in the state to be present where an interstate/ international defective product causes the injury, the company must have some other 3-S conduct in the state:
3-S
S- SOLICITATION of business in the state
S- SERVICES performed in the state
S- SALES consummated in the state (did the DF target the state)
20Service of process is proper under SWAPS
SWAPS
S- leaving summons at DFs dwelling with a SAD (Suitable Age and Discretion) person who RESIDES THERE
W- DF agrees in writing to WAIVE formal service of process
A- delivering a copy to an AGENT authorized by law or appointment to receive service of process on DFs behalf
P- delivering process PERSONALLY to the DF
S- serving DF according to STATE law either where the district court is located or state where service is made
21an AN can serve a summons in a federal proceeding
an AN
A- ADULT
N- NON PARTY
22there are three ways for a MAN, DF, to appear:
MAN
M- by making any pre-answer MOTION extends DF's time to answer
A- by serving an ANSWER to PL's complaint
N- by serving NOTICE of appearance (entry of appearance)
23A federal court on default judgment may be vacated for "good cause" which requires the DF to submit a REAM of papers
REAM
RE- REASONABLE EXCUSE as to why DF defaulted; and
AM- AFFIDAVIT of MERIT on the DF's viable defense
24If the SOL has expired, PL should consider tolling and extending provisions of CAD's LEAP
CAD's LEAP
C- time barred, related COUNTER-CLAIM
A- AMENDING a pleading to add a time-barred claim
D- DISABILITY of the PL
S- SOLDIERS and Sailors Civil Relief Act
L- the parties LENGTHENED the SOL
E- EQUITABLE estoppel
A- written ACKNOWLEDGEMENT of an old debt
P- PART-PAYMENT of an old debt
25ANT can save a time barred related claim when the pleading is amended
ANT
A- claim AROSE out of the same transaction/ occurrence pleaded in PL's original complaint
N-the PL's original complaint gave the DF NOTICE of the new claim
T- it was TIMELY when PL first commenced the action filed w/ clerk of court)
26ANT can allow a new party to be added to a complaint despite SOL expiring when
ANT for Parties
A- the claim against new DF AROSE out of the same T/O
N- within 90 Days from filing complaint w/ federal court the new DF had NOTICE of the PL's mistake
T- the claim against new DF was TIMELY when the summons and complaint was first filed in fed. ct
27There are two types of corrective motions:
2-S
S- A motion for a more definite STATEMENT
S- a motion to STRIKE irrelevant, prejudicial or scandalous matter
28When thinking of summary judgment in federal court think of LIPS
LIPS
L- the motion can be decided as a matter of LAW
I- there are no material ISSUES of fact to be litigated
P- the court can grant PARTIAL summary judgment
S- the court can SEARCH the record but only on issues raised in the motion papers
29Parties united in interest frequently involve the vicarious liability of POPE parties (liability based on relationship). Implied indemnification occurs b/c a POPE relationship is present.
POPE
P- the PRINCIPAL is an innocent principal asserting a claim against his/her agent (Principal can indemnify AGENT)
O- Co-OWNERS of real property (Co-owners are liable for each others actions)
P- an innocent PARTNER asserting an indemnification claim against a tortious partner
E- an innocent EMPLOYER asserting indemnification claim against the tortious employee under doctrine of respondent superior
30There are 6 provisional remedies
LIARRS
L- LIS PENDENS
I- PRELIMINARY INJUNCTION
A-orders of ATTACHMENT(sequestration)
R- appointment of a RECEIVER
R- REPLEVIN order
S- SEQUESTRATION (attachment)
31The Lis Pendens is the only provisional remedy where the PL isn't a SLOB
SLOB
S-SHERIFF isn't involved (for LP)
L- PLs LIKELIHOOD of success on the merits isn't reviewed by the court (for LP)
O- no court ORDER is required (for LP)
B- no BOND has to be posted by the PL
note: in all other PR's SLOB must be met.
32A preliminary injunction or a TRO won't be granted unless PL demonstrates by clear and convincing evidence LIE
LIE
L- LIKELIHOOD (a probability but not certainty) of PL's success on a meritorious claim
I- IRREPARABLE injury is occurring or will occur to PL unless the preliminary injunction is granted
E- EQUITIES, when balanced by the court, clearly weigh in PL's favor (comparative hardship test)
33Before a court will order a provisional remedy must ensure Due Process (if state action) is satisfied by a COP
COP (for Provisional Remedies)
C- showing CLEAR AND CONVINCING evidence PL is likely to succeed and is entitled to the provisional remedy requested b/c of extraordinary circumstances
O- DF must be given a OPPORTUNITY to be heard
P- a immediate (5-10days) POST-SEIZURE hearing must be held is LIAR was obtained ex parte
34In federal practice AID MD devices are used for pretrial discovery
AID MD
A- ADMISSIONS demand
I- written INTERROGATORIES
D- DEPOSITIONS
M- MENTAL and physical exams
D- DISCOVERY and inspection of evidence
35Protective orders seek to prevent unreasonable DEEP abuse of discovery procedures
DEEP
D-DISADVANTAGE (unreasonable/cumulative demands)
E- EMBARASSMENT
E- EXPENSE outweighs benefit of discovery (proportionality test- RAABBII)
P- PREJUDICE
36Discovery requests may be limited by a protective order where the need for discovery isn't proportional to the burden of discovery. A look at a RAABII decides this
RAABBII
R- the parties RESOURCES
A- The parties relative ACCESS to the material
A-the AMOUNT in controversy
B-BURDEN on the parties
B- BENEFIT to be derived by the discovery
I I - the IMPORTANCE in resolving the ISSUES of the claim
37An objection to the form of a question in a deposition are A CLAMS BAR
A CLAMS BAR
A- an Ambiguous question
C- a Compound Question
L- Leading questions on direct examination (except of a HAIRY witness)
A- Argumentative and badgering questions M-Misquoting an earlier statement of the witness in a question
S-asking witness to Speculate
B-overly Broad question
A- question Assumes a fact not yet in evidence
R- Redundant question on direct examination has been previously asked and answered
38when sanctions for failure to comply w/ discovery are proper A DRIPS can be imposed:
A DRIPS
A- Attorney's Fees and punitive sanctions
D-Dismiss the action or ordering a default
R- Resolve certain issues against non-disclosing party
I- allowing a Adverse inference jury charge
P- precluding party from offering evidence on certain issues
S- striking party's pleading on any part thereof
39To successfully assert collateral estoppel a party must show:
IF
• I - the IDENTICAL ISSUE was previously decided in an earlier action
• F- the party against whom collateral estoppel is being asserted had a FULL and FAIR opportunity to previously litigate the issues
40Elements of Collateral Estoppel
if I-PAWN something, I am precluded from taking issue if it gets sold.
I-PAWN
• I-IDENTICAL issue
• P-PARTY to the first proceeding (BUT mutuality considered)
• A-ACTUALLY litigated in first proceeding
• W-WAIVED assertion rights by failing to litigate in prior proceeding (with full and fair opportunity)
• N-NECESSARY to the outcome
41for certification of a class action to be proper, CANT must be present:
CANT
C - Common questions of law or fact exist w/in the entire class
A - Adequate representation to protect the interests of the class
N - the class is so Numerous joinder of all members is impractical
T - claims or defenses of the class representative are Typical of the class (similar injury)
42a nonfederal claim can be removed from state to federal court where the DF is a STUDD
STUDD
S- exceeds Seventy-Five Thousand Dollars
T-petition/attachments are filed in fed court within THIRTY days of receiving document indicating claim is removable
U- Unanimity --> all DFs must sign removal petition
D- no DF DOMICILED in removal state
D- complete DIVERSITY
43service on a corporation must be made on a GO A.M person
GO-AM
G- General Agent
O- Officer
A- Authorized Agent to receive process
M- Managing Agent
44in a rule 12(b)(6) motion to dismiss court opinions always cite FAT DRIPS
FAT DRIP
FACTUAL ALLEGATIONS are accepted as TRUE and the court DRAWS all REASONABLE INFERENCES in the PL's favor
4512(f) - HOW DARE YOU!
Regarding redundant, immaterial, impertinent, or scandalous matter.
4612(e) - SAY WHAT?
Motion for more definite statement.
4712(b)(6) - SO WHAT?
Failure to state a claim, ties into 8(a)(2)
48RAPPB needs a court order for EBT's(deposition) where there is:
RAPPB
R- Refusal to comply with EBT Demand
A- After courts bar date
P-Prisoners
P- previously deposed witness
B- before action commenced