In Personam: Jurisdiction over LI.personally and/or his property

Transcription

1 MIG 1 JURISDICTION Civil Proced ure PERSONAL JURISDICTION in-rem. rypes ~ In personam. Quasi-in-Rem does not bind LI.personally. In Personam: Jurisdiction over LI.personally and/or his property In Rem: Jurisdiction over a particular item of LI.'s property. Ct has power to adjudicate rights of all persons in world over the property. Quasi-in-Rem: Ct has jurisdiction over particular individuals with respect to specificproperty. Personal service forum state. Jurisdiction Domiciliary. based upon -----'---+ Consent. Minimum contacts. Long-Arm statutes inside within 100 miles of Federal Ct. SUBJECT MATTER To all civil actions JURISDICTION Extends arising under ) U.S. Constitution, (Federal question treaties and jurisdiction) federal laws. Amount in controversy No minimum ) amount required. Diversity No diversity ) of parties required. Joinder of claims If subject matter jurisdiction exists, federal ) court may add (append) related state law actions to federal claim. DIVERSITY JURISDICTION Diversity LI.& 1t = different states Requirements $75,000 + amount in controversy Aggregation of amount allowed Must apply substantive law Erie doctrine (Fed. Ct.) of forum st. Procedural rules apply fed. rules of civil procedure. Pendent or Supplemental Jurisdiction 1t has both a fed & state claim against LI.. Fed. Ct. may join both claims -1- ~,....

2 -2- MIG 2 VENUE Civil Procedure VENUE Oudicial district where action may be brought) District where any L'. resides. Diversity cases Where claim occurred. Or substantial part of claim occurred. Federal claim cases (i) Where any ~ resides. (ii) Where property is subject of action is located. If (i) & (ii) cannot be that satisfied then wherever L'.can be found. Corporate Residency Corporate L'. resides where it has sufficient contacts. Corporate n resides in state of its incorporation. TRANSFER OF VENUE (Fed. Ct. may transfer venue to another district) '~ Convenience of parties. Factors ~ Convenienceof witnesses. Forum non conveniens Where material event occurred. Law applicable upon transfer [ Law of transferor Ct. generally applies Transferee Ct. law applies if original venue was improper. r--- Permitted REMOVAL JURISDICTION ~ Limitation ~ may remove a fed. question action from state to fed. ct. Diversity removal not permitted if one of L'.s is a citizen same state as the n, of the Dismissal of nondiverse party. Removal Allowable ) If diversity does not exist because a party is a co-citizen of an opposing party their removal is permitted if non-diverse parties are thereafter dismissed. '" ()'n n \1 IT o 11 IT " rl 11 (l (l {l (1' (1 (l (J',(l""J' (1' (1' '" (1' P' ~,... fl' flo,-yo,j- '"" ~ (1',"

3 MIG 3 PRETRIALMOTION PRACTICE Civil Procedure MOTION TO DISMISS (Fed. Rule 12b) Grounds for dismissal lack of sub. matter jurisdiction. Lack of personal jurisdiction. Improper venue. Insufficient process. Failure to state a claim. Failure to join necessary party. Judgment on pleadings (Fed. Rule 12c) [After all pleadings completed. Motion denied unless there are no facts to support of action. cause Summary Judgment Motion may be made at any time usually after pleadings. Motion granted if no genuine issue of material fact exists. COLLATERAL ATTACK Personal Jurisdiction Ll never makes an appearance & default judgment Can Ll collaterally attack for lack of personal is entered '» jurisdiction? Yes, but if Aloses on personal jurisdiction issue, default judgment stands. Summary Judgment Can Ll collaterally attack judg. bee. of lack of sub]. matter jurisdiction? Yes, if judgment was by default. No, if it was a contested action. CONSOLIDATION Fed. Rule 12(g) Requires consolidation of defenses into motion. Failure to consolidate leads to waiver. WAIVER NO WAIVER Defenses waived [ lack of personal jurisdiction. if not pleaded ' Improper venue. Defenses preserved Insufficient of process. if_n_o_t_o_ri,,-gi_n_a_lly~p_le_a_d_ed_._[ Failure to state a claim. Failure to JOin necessary party. ~PL.6:!Y,...b..

4 pl!"" oii!'-iiiiiiiiiiiiiiiiiiiiiiiiiii _ :=--= MIG 4 Civil Proced ure OFCLAIMS Permitted (Permissive) ) Party allowed to join as many claims as she has against opposing party. OF CLAIMS Compelled (Compulsory) If failure splitting to join could result in of cause of action. Example: n has suffered both property loss & personal injury resulting from auto accident. OF PARTIES Permissive Multiple ns may join if each seeks relief on same claim from same transaction. One rt may join several As in one claim that arises from same transaction. NECESSARY (INDISPENSABLE PARTIES) Motion to [ May be granted for failure to join indispensible party. Dismiss. Exception: If joinder is impossible (e.g. joinder would destroy diversity) action may proceed w/outsider viewed as a necessary not indispensable party. IMPLEADER 3rd party practice to add persons to the suit If person "is or may be liable" to L'>. L'> seeks indemnity or contribution. INTERPLEADER Person has interest in property that is subject of litigation. "Stakeholder" may bring in other claimants to decide matter in a single law suit. In personam action and court must have personal jurisdiction over all parties. o ~,....b.. ('I ('I () (l () () ().. (I 4;> ~ ~ ~ ~ 0... "''' "'. "'",..-..n '\l" "l' "'" I(l' ~,~ 'P'.0.0,n ~

5 MIG 5 BINDING EFFECTOF JUDGMENT Civil Procedure RESJUDICATA (Applies in civil actions NOT criminal cases.) Claim Preclusion Precludes of claim if final judgment re-iitigation is rendered. Example: " sues Ll for negligence. Judgment rendered for 1'.. " cannot sue again for same cause of action. Parties Bound Same parties are bound. Non-parties not bound. SPUTIING A CLAIM Merger "wins an earlier lawsuit, his cause of action merges withe judgment and he cannot sue again. If I'. wins, the" is "barred" L---=B=-=a::cr_-> by the adverse judgment and cannot sue again. COLLATERAL ESTOPPEL (Applies in both civil and criminal cases.) Issue Preclusion A judgment for" or I'. precludes,---(_c_iv_il_c_a_se_) ---7 relitigation of same issues by same parties. Example: " sues Ll for negligence. " is found to be contributorily negligent. The issue of contributory cannot be relitigated. negligence Ll asserts intoxication as defense in a larceny prosecution. Jury finds I'. was,--c_r_im_i_n_a_1 c_a_s_e_---7not intoxicated when he stole prop. I'. now prosecuted for battery (arising out of same incident) because he struck victim when he took her prop. He cannot assert intoxication as a defense to battery. Cannot be used against a non-party to NON.MUTUAL the previous action. ~~;~~i~l ~ Can a non-party use collateral estoppel against someone who was a party? Yes, as a "defensive shield" (e.g., A is involved in an auto accident w/b, a driver for C Corp. A sues B for negligence and losses. A cannot sue C). Yes, as an "offensive sword" (e.g. SEC sued I'. for stock fraud and won. A, private rt sued Ll for same violation established in SEC action, 11 can establish violation on I'.'s part based on SEC action. -5- ~,...

6 -6- MIG 6 DISCOVERY Civil Procedure Must be relevant. DISCOVERY DEVICES Oral deposition Written deposition Interrogatories Document production Physical/mental exam INFORMATION. REQUESTED _ Privileged matter not discoverable. Insurance agreements discoverable. Qualified immunity: Attorney's work product. Limited discovery: Expert trial witnesses. to com pel where there has been a PROCEDURAL failure to comply w/discovery request. ASPECTS OF ---lmotion Protective order: Ct. may grant a DISCOVERY protective order over confidential documents. DISCOVERY SANCTIONS Discovery conference (failure to participate may result in sanctions). Discovery request (failure to supply info may result in sanctions). Discovery motions and discovery requests must be signed by attorney. If info is false, attorney may also be sanctioned. ~APLA!iJ""'." ~ ~~~~~~~OOO~~OOOOOOOOOOOOOOOOOOOOOO~~~~~