CivPro

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Author:
lauzguy
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91779
Filename:
CivPro
Updated:
2011-07-08 18:16:05
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CivPro lauzguy
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CivPro
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  1. Removal
    Under the FRCP, a defendant can only remove an action that could have originally been brought by the plaintiff in federal courts. Removal jurisdiction can be based on diversity jurisdiction or federal question jurisdiction.
  2. Diversity Jurisdiction
    Diversity jurisdiction requires that all the plaintiffs and defendants be citizens of foreign states and that the amount in controversy exceed $75,000.
  3. Remand
    A plaintiff can file a motion to have the case remanded back to state court. The court must remand whenever it is shown that there was no federal subject matter jurisdiction.
  4. Supplemental Jurisdiction
    A court has the discretion to esercise its supplemental jurisdiction and may entertain a state claim that is joined with a federal claim that is joined with a federal claim provided the claim arises from a common nucleus of operative fact. A common nucleuss of operative fact is usually considered to mean the same transaction or occurrence. No independent basis for subject matter jurisdiction is required.
  5. Collateral Estoppel (Traditional)
    A judgmeeent for the plaintiff or defendant is conclusive in a subseequent action on a different cause of action between them or their privies, as to issues actually litigated and essential to the judgment in the first action. However, under traditional "mutuality" rules, a judgment could not be used against a person who was not a party, because such use was held to violate due process rights.
  6. Collateral Estoppel (California)
    In California, the mutuality principle has been eroded and a four part test is applied to determine wheether a nonparty may rely on a prior judgment. First, the issue decided in the first case must be identical to the issue presented in subsequent case. Second, there must have been a final judgment on the merits. Third, the party against whom the judgment is to be used must have had a fair opportunity to be heard on the critical issue. Finally, the posture of the case must not be such that it would be unfair or inequitable to a party to apply collateral estoppel.
  7. Summary Judgment
    Summary judgment is appropriate if, from the pleadings, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The judgment may be partial as well as complete.
  8. Personal Jurisdiction (Traditional)
    Personal jurisdiction refers to the court's ability to exercise power over a particular defendant. Traditionally, courts have been found personal jurisdiction where the defendant: 1) is present in the forum state and personally served with process, 2) is domiciled in the forum state, 3) consents to jurisdiction, and 4) has committed acts brining him within the scope of the forum state's long arm statutes.
  9. Personal Jurisdiction (Constitutional)
    Jurisdiction is constitutional when sufficient minimum contacts exist between the defendant and the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. This standard requires two hurdles to be cleared: minimum contacts and fairness.
  10. Minimum Contacts
    In considering whether minimum contacts exist, the court will look to see if the defendant purposefully availed themselves of the benefits and protections of the forum, or if the defendant could reasonably anticipate that his activities in the forum state render it foreseeable that he may be haled into court there.
  11. Fair Play and Substantial Justice
    To assess fairness, a court will consider: 1) the relatedness of the claim to the contact (specific or general), 2) convenience of the forum to defendent, and 3) the forums state's interest in the outsome.
  12. Res Judicata
    Once a final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred by res judicata from trying the same cause of action in a later lawsuit. The earlier judgment must be a valid, final judgment on the merits, brought by the same claimant against the same defendant, involving the same cause of action, and the cause of action muct have been actually litigated or could have been litigated in the prioer action.
  13. Venue
    A civil action where jurisdiction is founded solely on diversity of citisenship can be brought in a judicial district where (i) any defendant resides, if all defendants reside in the same state, (ii) in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subeject of the action is situated, or (iii) any defendant is subject to personal jurisdiction.
  14. Change of Venue
    Even though venue is proper in a particular district, under the FRCP, an action may be transferred to another district where the action "might have been brought." However, before the action is transferred, the transferee court must have personal jurisdiction over the defendant and subject matter jurisdiction over the action. Transfer will be permitted when the parties or witnesses would be greatly inconcenienced by the trial in the original forum.
  15. Scope of Disclosure and Discovery
    A party may seek to obtain any non-privileged matter that is relevant to any claim or defense, including any documentary evidence. The party seeking discovery must show that the information sought is reasonable calculated to lead to the discovery of admissible evidence on a claim or defense in the case. It is not required that the information itself be admissible at trial.
  16. How to Obtain Documents Through Discovery (Third Party)
    The party seeking the documents must subpoena the third party to produce the records. The requesting party should include a declaration that explains why the records are relevant to the action. If the third party refuses to provide the records, the requesting party can ask the court to hold the third party in contempt.
  17. Physical and Mental Examinations
    The FRCP provide for an independent physical examination of a party when that party's physical or mental condition is in controversy. However, such an examination is only available through a court order on a showing of good cause.
  18. Essay Approach

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