CIV PRO I

What are the phases of litigation?

Pre-litigation

Mediation

Litigation

Initial Pleadings

Discovery
Pre-Trial Motions
Trial
Judgment

Appeal

What is pre-litigation?

The lawyer meets with the client, determines legal issues, and typically issues a demand letter.

What is a demand letter?

An attempt to resolve the dispute before going to court; it puts the opposing party on notice of your legal position, outlines the claims intended to be pursued, and invites the other side to resolve the issues prior to filing.

What is mediation?

Disagreeing parties use their lawyers or a hired mediator to negotiate and resolve their issues before starting formal litigation.

What is litigation?

It begins the formal proceedings of the lawsuit.

What are initial pleadings?

The plaintiff’s attorney files a complaint with the appropriate court. The court then issues a summons. Defendant responds. Court issues a scheduling order.

What is the complaint?

It must include information about the parties to the case, allegations about what happened and who bears responsibility, a list of wrongdoings, a demand, and the desired outcome.

What is the summons?

It is issued by the court after receipt of the complaint and notifies the defendant that they’re being sued, informs them of the other party, attorney’s information, case details, and encloses a copy of the complaint.

What is the response?

It is filed by the defendant after review of the complaint and responds to the allegations in the complaint, including counterclaims.

When is an answer (response) an appropriate response to a complaint, and what is the most common type?

Always; a denial of 1+ key allegations

What is FRCP 12(b)?

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required.

What is the scheduling order?

It is issued by the court and outlines the next steps and timeline for the lawsuit.

What is discovery?

Both parties learn as much as they can about the case; it includes document review, interrogatories, subpoenas, and depositions.

Are discovery orders reviewable?

Yes, after final decision, including orders to submit to an examination.

When can a party resist discovery?

On grounds of proportionality, including expense in relation to likely relevance

Are nonparties required to offer evidence?

Yes, if they possess relevant, nonprivileged evidence

What is a motion for summary judgment, and when is it filed?

It asks the judge to decide either hte case or a singular issue without a full trial and argues that there are no genuine disputes over material facts, such that the moving party is entitled to judgment as a matter of law because a trial would be unnecessary based on the existing record; before trial.

What is a Rule 12(b)(6) motion and what does it assume?

Plaintiff’s allegations in the complaint, if proved, would entitle him to the court’s help, but does not consider whether the plaintiff can prove the truth of the statements; it assumes the allegations are true.

When does a trial occur and what are the types?

Judge or jury; when disputes over facts exist

Is an order to submit to a physical or mental examination appealable?

No, it is not appealable.

What are the two limitations on appeals?

Standard of review and timing of review

What is standard of review?

Findings of fact should be affirmed unless clearly erroneous.

Rulings of law should be affirmed only if the appellate court would have reached the same conclusion.

When is the only time the appellate court should reverse?

If the lower court’s error affected the outcome of the lawsuit.

What is the main issue with timing of review?

Interlocutory orders are non-final.

When is the only time the Supreme Court may hear a state case?

If it presents an issue of federal law

What established the system of federal courts?

Constitution, Article 3, Section 1

What addresses the relationship between state and federal government and requires that the full faith and credit be given to each state to judicial proceedings of every other state (if court had jurisdiction)?

Constitution, Article 4, Section 1

What is jurisdiction?

The power of a court to issue a judgment that another court will recognize and enforce.

What does a court need to hear a case?

Personal jurisdiction, subject matter jurisdiction, proper venue

What is personal jurisdiction?

The Court can exercise power over a defendant or item of property.

What is required for personal jurisdiction?

Some connection to the forum state

What established the concept of personal jurisdiction?

The Due Process Clause (14th Amendment)

What is the forum state?

The place where the lawsuit is filed.

What does Pennoyer say?

A plaintiff cannot sue a defendant wherever they choose because without guaranteeing a fair judicial procedure, a state would violate the due process clause.

What does FRCP 12(b)(2) deal with?

Personal jurisdiction

What are the three elements of personal jurisdiction under Pennoyer?

Power, consent, and notice

What is power in terms of personal jurisdiction under Pennoyer?

States have jurisdiction over people and things within their borders, but they do not have jurisdiction over people and things not within their borders.

What are the types of personal jurisdiction?

In rem

Quasi-in-rem

In personam

What is in rem jurisdiction?

The court has power over the property, and the property is at issue in the case (not the person).

How is in rem jurisdiction established under Pennoyer?

Property must be located in the state, AND property must be the subject of the lawsuit.

What is quasi-in-rem jurisdiction?

The court gains power over the defendant based on the presence of the defendant’s property within the court’s jurisdiction and forces the defendant to appear by threatening to seize the property if they don’t participate in the lawsuit.

What is in personam jurisdiction?

The court has power over the person.

How is in personam jurisdiction established under Pennoyer?

Defendant physically lives in the forum state, OR

Defendant is served in the forum state while physically present in the state, OR

Defendant consents to service and shows up to litigate the lawsuit.

What is subject matter jurisdiction?

The court has power over a particular type of case.

What establishes subject matter jurisdiction?

Constitution, Article 3, Section 2

What does International Shoe establish?

A more flexible, “it depends” standard for personal jurisdiction that considers the nature and quality of contacts with the forum state.

What is purposeful availment?

Ds have deliberately chosen to avail themselves of the benefits and protections of the forum state’s laws

What is required for general jurisdiction?

Continuous and systematic contacts with the forum state; the level must be high and cannot be single, isolated, occasional, or casual

What is required for specific jurisdiction?

Minimum contacts with the forum state; a single, isolated act of sufficient quality and nature to support jurisdiction over claims that arise out of that single, isolated act

What does International Shoe say?

A D must (1) have minimum contacts with the forum state, and (2) allowing the lawsuit to contiue does not offend traditional notions of fair play and substantial justice.

When is a company considered “at home” and what does that establish?

At their principal place of business or state of incorporation; general jurisdiction

What if a company is “at home”?

They are subject to suit for any claim in that state

What does the court require for minimal contacts?

A close link between the contacts and the subject of the lawsuit

What does Shaffer do?

Extends the International Shoe minimal contacts test to individuals and companies for in personam and in rem cases

What does McGee tell us?

The Due Process Clause allows a court to enter a binding judgment on a respondent when the suit is based on a substantial contact with the forum state.

What does Hanson deal with?

Unilateral activity of those who claim some relationship with a non-resident D cannot satisfy the requirement of contact with the forum state; the D must have purposefully availed itself of business in the forum state.

What does Burger King do for personal jurisdiction?

A party who purposefully established contact in the state such as through a long-term K, doing biz with a party in the state, or engaging in ongoing biz dealings, can reasonably anticipate being sued in the state.

What does WW VW say?

It’s not enough that the D might have predicted that its good will reach the forum state, but foreseeability is not entirely irrelevant. Where the D’s conduct and connection to the forum state are such that D could expect to be sued there, it leans toward personal jurisdiction.

What does Asahi Metal say?

Placing a product in the stream of commerce, without more, is not purposeful availment. D must take actions purposefully directed toward the forum state for minimum contacts to be established.

What is the minimum contacts plus test?

Placing a product into the stream of commerce knowing it might end up in a particular state is not enough to establish personal jurisdiction without additional factors including (1) designing the product for the forum state’s market; (2) advertising in the state; (3) establishing channels for customer support in the state; and (4) maintaining a distributor or sales office in the state.

What does Nicastro say?

Placing products in the stream of commerce does not by itself create personal jurisdiction; a company must also purposefully avail themselves of the state’s laws.

It is the D’s actions, not expectations, that empower a state’s courts to subject him to judgment.

How is specific jurisdiction established?

(1) Minimum contacts

(2) Comports with fair play & substantial justice

What factors should be considered for fair play & substantial justice for purposes of specific jurisidiction?

(1) burden on D

(2) forum state’s interest in adjudication

(3) P’s interest in convenient & effective relief

(4) interstate judicial system’s interest in efficient resolution of controversies

(5) shared interest of several states in furthering fundamental substantive social policies

Does the court have jurisdiction?

Jurisdiction is the power of a court to issue a judgment that another court will recognize and enforce and requires both personal and subject matter jurisdiction.

Is there personal jurisdiction?

Personal jurisdiction is established when the Court can exercise power of a D or an item of property and requires some connection between D & forum state.

What are the steps to determine if there is personal jurisdiction?

(1) traditional basis

(2) modern basis

Is there personal jurisdiction under the traditional basis (Pennoyer)?

This requires (1) power, (2) consent, and (3) notice.

Does the court have power?

Generally, states have jurisdiction over people and things within their borders. Power can take the form of in rem, quasi-in-rem, or in personam jurisdiction.

Is there in rem jurisdiction?

This is established when the Court has power over the property, and the property is at issue in the case. This requires (1) the property be located in the state, and (2) the property is the subject of the lawsuit.

Is there quasi-in-rem jurisdiction?

This is established when D has (1) property located in the state, (2) that is attached at the beginning of a suit, (3) that is at threat of seizure if D does not participate in the suit.

Is there in personam jurisdiction?

This is established when the Court has power over the people and requires (1) D physically live in the forum state, (2) D is served in the forum state while physically present in the state (“tag” or “transient” jurisdiction), or (3) D consents to service and shows up to litigate the suit.

Is there personal jurisdiction under the modern basis (Int’l Shoe)?

This can be established through general or specific jurisdiction.

Is there general jurisdiction?

General jurisdiction can be established when a corporation is “at home” which is their place of headquarters, incorporation, or “nerve center.” This is established by continuous and systematic contacts with the forum state. The level of contact must be high and cannot be single, isolated, occasional, or casual. Where a company is at home, they are subject to suit for any claim in that particular state.

What are considerations to be taken into account for purposes of general jurisdiction?

(1) foreign corporation

(2) subsidiary

(3) individual

Is it a foreign corporation for purposes of general PJ?

If so, the Court may assert jurisdiction only when the corporation’s affiliations with the State in which the suit is brought are so constant and pervasive as to render it essentially at home in the forum state.

Is it a subsidiary for purposes of general PJ?

These are conducted as genuinely separate businesses and are not merged for jurisdictional purposes.

Is it an individual for purposes of general PJ?

If so, they must be domiciled in that jurisdiction.

Is there specific jurisdiction?

Specific jurisdiction applies to individuals and companies for in personam and in rem (property) cases and requires (1) minimum contacts with the forum state and that (2) allowing the lawsuit to continue does not offend traditional notions of fair play and substantial justice.

Are there minimum contacts with the forum state?

This looks to purposeful availment, whether the D has deliberately chosen to avail themselves of the benefits and protections of the forum state’s laws. Where the contacts are minimal, the courts insist on a close link between those contacts and the subject of the lawsuit.

What should be considered for minimum contacts?

(1) Did the claim arise out of the minimum contacts?

(2) Is there purposeful availment?

What if the claim does not arise out of the minimum contacts?

If the claim arises out of activities related to the minimum contacts, it may be sufficient to establish specific jurisdiction.

Is there purposeful availment?

This looks to actions purposefully directed at the forum state, whether D gains benefits from the forum state, and considers various factors.

What are the purposeful availment considerations?

Foreseeability

Long-term Ks

Advertising

Sales offices, etc.

Distributors

Designing products

Directing activities

Stream-of-commerce

Passive websites/unsolicited sales

Is there foreseeability for purposes of specific PJ?

This requires more than a single, isolated act or unilateral activity of those who claim some relationship with a non-resident D.

Does D maintain distributors in the forum state?

The bare fact that D contracted with a distributor in the forum state is not enough to establish PJ.

Does D direct activities to the state which caused the harm?

If the sale of a product is not a simply isolated occurrence but arises from the efforts of the D, it is not unreasonable to subject it to suit in one of those States if the product has allegedly caused the harm.

Did D merely put items into the stream of commerce, without more?

Flow of a manufacturer’s products into the forum may bolster an affiliation germane to specific jurisdiction.

Did D maintain passive websites with unsolicited sales from the forum state?

A passive website does little more than make information available to those interested in it and is thus not grounds for PJ.

Does allowing the lawsuit to proceed offend fair play & substantial justice?

Factors to consider include

(1) burden on D;

(2) forum state’s interest in adjudication;

(3) P’s interest in convenient & effective;

(4) interstate judicial system’s interest in efficient resolution of controversies;

(5) shared interest of several states in furthering fundamental substantive social policies;

(6) other policy concerns including whether another state has a more significant interest in the adjudication of the suit.

Can D assert a rule 12 challenge?

Rule 12 governs how a D can respond to a complaint and includes defenses, motions to dismiss, and timing requirements.

Is there a relevant defense under Rule 12(b)?

Seven defenses can be raised in a motion, but must be made before pleading if a responsive pleading is allowed. If no responsive pleading is required, D may assert any defense at trial.

What are the 12(b) defenses?

1 - lack of subject matter jurisdiction

2 - lack of personal jurisdiction

3 - improper venue

4 - insufficient process

5 - insufficient service of process

6 - failure to state a claim upon which relief can be granted

7 - failure to join a necessary party under Rule 19

Has the defense been asserted in the initial motion?

Under Rule 12(g)(2), all defenses or objections available must be asserted in its initial motion, subject to several exceptions.

If not asserted in the initial motion, has the defense been waived?

A party waives defenses per Rule 12(b)(2) through 12(b)(5) by omitting it from the initial motion or failing to either make it by motion or include it in a responsive pleading allowed by Rule 15(a)(1).

A Rule 12(b)(6) motion tests:

Whether the complaint alleges facts sufficient to state a legally sufficient claim

When must a Rule 12 motion be filed?

Before the responsive pleading, if an answer has not been filed

A motion for judgment on the pleadings is governed by which part of Rule 12?

Rule 12(c)

Which of the following best describes a Rule 12(f) motion?

A motion to strike redundant, immaterial, or scandalous matter from a pleading

A party files a Rule 12(b)(5) motion. What is the basis of that motion?

There was insufficient service of process

What is the effect of a successful 12(b)(1) motion?

The court dismisses for lack of subject matter jurisdiction