Civil Procedure: Personal Jurisdiction and Discovery, Study notes of Civil procedure

Download Civil Procedure: Personal Jurisdiction and Discovery and more Study notes Civil procedure in PDF only on Docsity! 1 Civil Procedure Outline Personal Jurisdiction I. In personam jurisdiction exercised over the defendant himself because he has an appropriate connection with the forum. a. Resides and intends to remain (domicile). b. Acts committed in state. c. Committed an act which impacted the state I. In rem and quasi-in-rem jurisdiction is when there is jurisdiction because the defendant’s property is located in the forum and that property may give the court its jurisdiction. a. Tangible-houses, buildings, boats, books b. Intangible-stocks and bonds, accounts. c. Real property II. 5th and 14th Amendments are the outer limits of personal jurisdiction over the defendant. III. Long arm statutes can restrict when a court can have jurisdiction over a defendant further. IV. Personal jurisdiction is always proper when the defendant: a. Is served process in the forum state. b. Resides in the forum state. c. Is a business which is incorporated or has its principal place of business in that State. V. Absence is not a defenses. If you are domiciled in a state that is sufficient to allow service. VI. Domiciliary means that you have consented to State’s benefits and protections VII. Black Letter Law: a. Minimum contacts with it such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. b. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond…can hardly be said to be undue. c. The activities were systematic and continuous…to establish sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our…conception of fair play and justice, to permit the state it enforce is obligations which the appellant has incurred there. VIII. Activities of the non- resident defendant give rise to the cause of action Causes of action are unconnected with the forum Contacts with the forum is continuous and systematic. Yes, Proper jurisdiction Maybe, general jurisdiction Contacts with the forum is single or isolated. Maybe, specific jurisdiction No, improper jurisdiction IX. Transient jurisdiction is serving a nonresident defendant in the jurisdiction. X. Minimum contacts test a. Minimum contacts (must be done before fairness test) i. Relevant contacts to Forum State. 2 ii. Relatedness to the cause of action b. Fairness factors i. Burden on the defendant. ii. Foreign State’s interest. iii. Plaintiff’s convenience iv. Interstate judicial system’s interest in obtaining the most efficient resolution of controversies. v. The shared interest of the several States in furnishing fundamental substantive social policies. c. Purposefully availed themselves so that they could reasonably anticipate being haled into court. XI. Contract provisions alone are not sufficient to establish personal jurisdiction. XII. A unilateral act by the plaintiff is not sufficient to establish personal jurisdiction. XIII. In product liability cases, stream of commerce, it is the defendant’s purposeful availment that makes jurisdiction consistent with traditional notions of fair play and substantial justice. Notice I. Notice is a full opportunity to appear and be heard. II. Black Letter Law: a. Notice reasonably calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. III. Rule 4 a. Process is a summons and a complaint. b. Plaintiff has 120 days to serve after filing a complaint or the complaint will be dismissed without prejudice. c. Rule 4(e) allows service at: i. According to State law. ii. Personal service iii. At their abode(substitute) iv. By an authorized agent. d. “Actual” Notice (telling them without a summons and complaint) not proper service. e. Waiver of service: i. Defendant has an advantage of more time to respond to the complaint. ii. Defendant could incur the costs if not waived. iii. Plaintiff can proceed with other service when there is no defendant response. f. Statute of limitations ends when the complaint is filed. If the defendant is not served and the claim is dismissed after, it is done so without prejudice. The plaintiff might be barred from bringing a second suit, though, unless they can show good cause. Venue I. §1391 (b)(1) Any district where a defendant resides, if all are residents of the same state. 5 Response/Answer I. No answer leads to a default judgment. II. Answers require due diligence. III. 12(b)(1) can be brought at any time. IV. 12(b)(2)-(5) must be presented in first defensive response, whether in a motion or an answer. If they are not presented then, they will be waived. V. 12(b)(6) & (7) can be presented as late as at trial before the judgment. VI. Rule 12(e) motion for a more definitive statement: a. Complaint cannot be understood. b. Must be made in a pre-answer motion. c. Will be provided with 14 days to amend the complaint. VII. Rule 12(f) motion to strike a. Must be made before answer within 21 days. VIII. Rule 12(b)(c) motion for a judgment on the pleadings. a. Similar to a 12(b)(6) motion. IX. Response to claims and affirmative defenses (Rule 8(c)(1)). a. Admit allegations. b. Deny allegations c. Lack sufficient knowledge; an effective denial. Rule 8(b)(5). X. You must admit what is true and use specificity when you deny. A general denial is not enough. XI. BLL: a. When a pleader intends in good faith to deny only a part…he shall specify so much as is true and material and shall deny only the remainder. b. The doctrine of equitable estoppel will be applied to prevent a party from taking advantage of the statute of limitations where the plaintiff has been misled by the conduct of such party. XII. All allegations not properly denied are deemed to be admitted. XIII. Nonresponse is treated as an admission. XIV. Affirmative defenses (Rule 8(c)(1)): a. Have to put in facts to support why the defendant is not liable, even if he actually did the act. b. Parties or court can raise affirmative defense. c. Must come in answer and defendant has the burden. Reply I. Only if required by the court, the plaintiff will respond to defendant’s answer. II. If not required, an allegation is considered denied or avoided. Discovery I. Scope of Discovery (Rule 26(b)): a. All information which is relevant to a claim or defense of a party. b. With court’s permission, can gather information related to the subject matter of the litigation. c. Relevant information need not be admissible at trial if is reasonably calculated to lead to admissible evidence. 6 II. Spoliation a. BLL: i. Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. ii. The trial court has discretion to pursue a wide range of responses…But dismissal should be avoided if a lesser sanction will perform the necessary function. iii. The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. iv. Dismissal is justified only in circumstances of bad faith or if the prejudice to the defendant is extraordinary, denying it the ability to adequately defend its case. III. Initial disclosures [Rule 26(a)(1)]: a. Must disclose certain information without being asked. b. Rule 26(f) discovery conference gives 14 days for disclosure (30 if the party has been joined). i. Witness names, telephone numbers, and addresses. ii. Documents, including electronically stored information, and tangible things. iii. Computation information. iv. Insurance information c. Only requires information that supports your claims or defenses. d. Information which is to be solely used for impeachment does not need to be disclosed. e. Disclosure of information reasonably available after due diligence. f. Failure to disclose can result in the exclusion of the evidence, unless the failure was harmless or with justification. IV. Production of documents (Rule 34): a. Can be requested specifically or as a part of a category. b. Documents only need to be provided as they were kept in the usual course of business. c. Responding party may produce or object. d. Forms of production: i. If no agreement, the requesting party can specify the form. ii. Responder may object and provide notice of how they will produce. iii. Electronically stored information need only be provided in ordinarily maintained form or the form(s that are reasonably useable. e. Metadata: i. Must provide when requested; not privileged. ii. Party may not produce in a manner which is not reasonably accessible or causes an undue burden. V. Physical or Medical Exams (Rule35): a. Must be requested of a party or person under control of a party. b. Mental or physical condition of a party must be a part of the controversy. 7 c. Requesting party must demonstrate good cause to justify the examination. i. The examined party may request a copy of the report and party requesting may get copies of any reports arising from any similar examination. VI. Interrogatories (Rule 33): a. A party may send written questions to the opposing party. b. Limited to 25 interrogatories unless the court otherwise orders. c. Allows for the questioning party to view the respondent’s business records to figure out the answers themselves. VII. Admissions (Rule 36): a. Matter is admitted unless a written answer or objection is served. b. A party may qualify an answer when good faith requires it. VIII. Deposition (Rule 30): a. Any person with testimony can be called; need not be a party. b. Objection-confusing question, privilege, confidential, and relevance. c. May instruct a client not to answer when preserving a privilege. d. Limited to 1 day of 7 hours. IX. Privileges [Rule 26(b)(3)]: a. Work Product-Materials assembled in the ordinary course of business or pursuant to a litigation or other no litigation purposes. i. If requested, claim a privilege under 26(b)(5) and ask for a protective order under Rule (26)(c)(1). b. Attorney-client privilege i. Assert the holder is or is seeking to be a client. ii. Person to whom the communication was made 1. A member of the bar or his/her subordinate. 2. Is communicating as a lawyer. iii. Communication relates to a fact for the purpose of securing either an opinion of law or legal services. c. Protects communications rather than information or facts. d. BLL: i. This work is reflected…in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-“work product of a lawyer.” Joinder I. Is there a joinder provision which allows assertion of this claim? If yes, move on to establishing subject matter jurisdiction. II. Rule 18(a) abolishes prohibition against bringing unrelated claims against defendant. a. It is permissive and does not require a claim be brought. b. The rule does not stop you from bringing a later claim, but if it is transactionally related, you may be barred from later bringing it (claim preclusion). c. There must be an initial claim, counterclaim, or crossclaim before Rule 18 can join any claims. i. Common nucleus of operative facts ii. Solely diverse iii. Supplemental and joinder exceptions.