Civil Lit Exam 2 Chapters 4 & 5

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Parties to an action may be private individuals as well as partnerships, unincorporated association, sole partnerships, sole proprietorships, corporations, and public bodies
Partnership is made up of two or more individuals who carry on a business and divide any profit or loss of the business.
Unincorporated association is made up of individual members who operate under a common name, such as social organizations, churches, and homeowners' groups.
Sole proprietorships are entities consisting of just one person, and unincorporated associations, in addition to naming the entity as a party (engaging in business without any corporate back up)
Corporation is made up of its shareholders who own the entity
Real Party In Interest The party who, under applicable substantive law, has the right that the lawsuit seeks to enforce
Rule 17(a) requires that an action be brought "in the name of the real party in interest"
Assignment is a claim that has been transferred to another person or entity, the assigne is the real party in interest and has a right to sure in the assignee's own name.
Subrogation occurs when one party becomes obligated to pay for the loss sustained by another (the party who should have paid for reimbursement – i.e. an ins co)
Capacity to sue having a legal ability to sue or defend an action.
Guardian ad Litem A person appointed by the court to represent another, usually a minor or incompetent, in a lawsuit.
Rule 17(b) Generally, individuals and entities have a right to sue or defend an action
Rule 17(c) an infant or incompetent can sue or be sued in the name of a representative
Joinder of Parties The bringing together of different parties in one lawsuit – governed by Rules 19 and 20 of the Federal Rules of Civil Procedure
Rule 19 what parties must, or should be, joined is governed by
Rule 20 what parties may be brought in is governed by
Rule 19(a) governs what parties are to be joined "if feasible"
Rule 19(b) governs what the court should do if all required parties cannot be joined, that is, if joinder is " not feasible"
Intervention the ability of a person not a party to the lawsuit to become a party to the lawsuit when such a person has an interest in the outcome of the lawsuit
Permissive Joinder a joinder of parties that is allowed – but not required – by the court
What Rule is Permissive joinder ruled by? it's by Rule 20
Joinder of Claims the bringing together, in one lawsuit, of the different claims that a party may have against another party.
Subject Matter Jurisdiction The power of a court to hear particular matters
Standing The right of a person to challenge in court the conduct of another
Pendent Jurisdiction Jurisdiction by the federal court over nonfederal claims when both the federal and nonfederal claims derive from a common set of facts
Sovereign Immunity The insulation of government form being sued when acting in its official capacity – government can only be acting in a way that a government can act to receive this immunityg
Diversity Jurisdiction The power of the federal court to hear controversies between citizens of difference states – must be more than $75,000 but does not apply to domestic relations or probate questions.
Domicile The citizenship of natural persons is the state of permanent residence, and no person can have more than one domicile at a time
Principal place of business For a corporation, it provides that its citizenship is both the state where it is incorporated and the state where it has its….
Complete diversity The plaintiff must have a different state citizenship from each defendant in order for the federal courts to have jurisdiction
*Ancillary jurisdiction The authority of a federal court to hear certain types of pleadings involving claims that do not have an independent basis for federal jurisdiction
Personal Jurisdiction The power of a court to bring a party before it and to make a decision binding on such a person
In personam jurisdiction refers to the courts's power to personally bind the parties to the court's judgment. – jurisdiction over the person
In rem an action is one that involves property (the res) located within the state in which the court sits and in which the parties have their dispute
Quasi in rem is a type of jurisdiction that allows a plaintiff to use property of the defendant to satisfy a claim so long as the property is in the state – ONLY can tell the parties what to do with the property
Due Process A constitutional doctrine requiring fairness in judicial proceedings
Forum State the state in which the action is brought- the state where the action/law suit is pending
Minimum Contacts standard requires that there be sufficient activities of the defendant in the forum state to subject the defendant to the jurisdiction of the court
Service of Process refers to the actual delivery of the legal document (usually the initial summons and complaint) to the defendant.
Long-arm Statutes State laws that enable a court to exercise jurisdiction over a defendant who is outside the geographical boundaries of the court
Venue The geographic district where a lawsuit may property be heard – where the suit is filed and the trial takes place
Change of Venue a can be based on two grounds being improper venue and inconvenient venue
Improper Venue When the Plaintiff files a complaint in the wrong geographic district
Inconvenient Venue When the Plaintiff files a complaint in a proper distinct but a district that is not convenient for the defendant or witness
Choice-of-law decisions Determining in which court a complaint should be filed. There are two – Procedural law and substantial law
Pleadings Formal written documents by the parties to the litigation to either start or respond to the litigation
Notice Pleading Short and plain statement in the complaint of the claim that the plaintiff seeks to enforce and the relief that the plaintiff is required
Rule 7(a) permits what four forms of claims??? Complaint, counterclaim, cross-claim, third-party complaint
Caption Has three elements – file number (case number), names of the parties and identification of the side of the action for each and the Court in which the case is being filed (state and County or district)
Reasonable Inquiry The requirement that the lawyer has looked into the law and facts and concluded that there is a sound basis for the pleading.
Certificate/Affidavit of Service A notice at the end of a pleading indicating that service of the pleading has been made upon a particular party
Complaint The document filed by the aggrieved party to commence litigation
Prayer for relief A section at the end of a complaint specifying the relief requested by the plaintiff
Default Judgment Judgment entered against a defendant who fails to appear and defend against the lawsuit after having been given proper notice of the lawsuit
Summons Notice accompanying the complaint that commands that the defendant appear and defend against the action within a certain period of time – without a summons you have no case
Memorandum of law Legal document submitted with a motion setting forth background facts and legal authorities to support a position
Motion to Strike A motion to eliminate certain allegations from a complaint
Motion to Dismiss A notion by the defendant that the complaint filed by the plaintiff be dismissed because of some specified defect
Answer A response by the defendant to the plaintiff's complaint
Affirmative Defense Defense pled by the defendant in the answer that, if proven, denies recovery to the plaintiff
Counterclaim Claim in the form of a pleading brought by the defendant against the plaintiff as part of the same lawsuit
Compulsory Counterclaims A counterclaim that must be brought by the defendant against the plaintiff or else the defendant will lose the right to assert the claim (washes)
Permissive Counterclaim A counterclaim against the plaintiff but that does not have to be brought in the same action – Killing 2 birds with 1 stone – the claim came upon from same accident/occurrence -involve s the same ppl but different circumstances
Recoupment A right by the defendant to have any damages awarded to the plaintiff reduced because of some entitlement by the defendant to damaged from the plaintiff
Reply The plaintiff's answer to the defendant's counterclaim
Cross-claim A complaint brought by one co-defendant against another co-defendant – must arise form the same transaction
Third-party practices The method for bringing into an action new parties who may be liable to a defendant for some or all of the judgment
Impleader The method for bringing into an action new parties who may be liable to a defendant for some or all of the judgment that the plaintiff may obtain against the defendant
Third-party Complaint A complaint by a defendant in the action against a new party, which brings this new party into the action
Interpleader Procedure under which a party subjected to double liability may deposit into court a fund or property
Intervention of Right The ability of a person to become a party to the lawsuit when such a person has an interest in the outcome of the lawsuit
Permissive intervention The ability of a person to join a lawsuit if the claims or defenses are similar to the main action
Res judicata A doctrine that provides that any judgment is binding on the parties forever. Literally means " a thing decided"
Relation back Legal doctrine that permits an amended pleading to be deemed filed at the time the original pleading was filed
What types of parties do you encounter in a law suit? Individuals, partnerships, unincorporated Associations, sole proprietorships (D/B/As), corporations, public bodies.
Individuals A person being sued or a group of people being sued
Limited Liability A formal partnership (and registered with the secretary of state) if you do not have this then all parties are "on the hook/responsible" (can go after personal assets if you do not have this)
Corporations have Shareholders
LLC's and PLLC's have Members
What make a partnership official? Submitting required documents to the secretary of state and file annual reports
If you make a partnership official what does that give you over a non-official partnership? Protection of personal assets
Real Part in Interest either the party who had been wronged or party who did the wrong
What do you need to have "capacity" Must be someone who can prosecute or defend the claim, may not be under 18 (unless emancipated), or incapacitated) [guardian ad litem]
Rules 19 and 20 give guidance on who must be a party. The process of how you bring in the parties.
Federal Subject Matter must have a real dispute under federal Constitution, statute. or diversity that is more than $75,000 in question,
General Jurisdiction for all matters where you live, work etc…
Specific Jurisdiction for this matter only – court can only ask/see you for this ex. location where event occured
Removal Process by which a defendant, who has been sued in state court, can remove the matter to federal court if all requirements are satisfied – form and time requirements
Rule 4(e) Tells how you can serve a defendant
What are examples of pleadings? Complaint, Answer, Motions, Brief
How many elements to a pleading? 5
What are the elements to a pleading Caption, Allegations or Responses, Prayer, Signature, Certificate of Service (COS) – there is no COS on a complaint
Why is there no COS on a complaint because there is a summons
what is SIC and when do you use it to signify it wasn't there in original – that there was a mistake and you are following suit but it truly is incorrect – ex numbering
What is service? How you get the document to the other side – all pleadings must be served to all parties
Rule 5(b) allows for service by hand, mail, fax (in NC), email (by consent) – can not serve complaint by fax or mail
What is the cut off for something that is signed to go out? 5 pm that day int he manner indicated – fax should be dated the next day
How many days do you have to serve a complaint/summons in NC 60 days if served together – if summons is not filed with the court within 5 days from the complaint being filed you have to start over.
How long do you have to answer a complaint You have 45 days to respond unless you request a motion to extend time.
How long is your summons alive only for 90 days unless request otherwise
What is considered proof of service Green certified mail card, Fedex receipt, sheriff's affidavit or affidavit of publication
How are you allowed to serve a party? By rule 4 – for example you can not do this at a funeral.
What types of responses are there? Rule 12 Motions, Answer, Counterclaims/replies, Cross-claims, third-party claims.
What are Rule 12 Motions? attack deficiencies in the complaint or service
When should Rule 12 motions be filed? with the Answer
Failure to assert before answering waives what? Rule(b)(1) – (5)
Motion to Strike – 12 f to ask the court to get rid of allegations in the Complaint
Motion for More Definite Statement when the defendant requests the judge to make the plaintiff write an amended complaint
Which 12(b) motions are considered procedural/technical? 12(b)(2)-(5)
12(b)(2) Lack of person jurisdiction ex. insufficient contacts
12(b)(3) Improper Venue – ex. attorney office location is the only correlation – it will not be thrown out it will be transferred.
12(b)(4) Insufficiency of Process- There is an issue with the summons itself; the information on the paper is defective – not really an issue unless the statue of limitations passes
12(b)(5) Insufficiency of Service of Process – an issue with the actual process of the service ex. FedEx with no signiture
12(b)(1) Lack of Subject Matter Jurisdiction – parties can only do it in the beginning but the court always can.
Which 12(b) motions are considered Substantive (actual failures in claims) 12 (b) 1; 6 and 7
12(b)(6) Failure to state a claim on which relief can be granted
12(b)(7) Failure to join a necessary party – the court will tell the Plaintiff to add an amended complaint and then continue going (keep in mind the statute of limitations)
How long does one have to respond to an a complaint? 30 days
What are the motions for Deficient Pleadings? Motion to Strike and Motion for more Definite Statement
Motion to strike – 12(f) Asking the court to get rid on an allegation in the Complaint
Motion for More Definite Statement When the complaint is vague and ambiguous – the judge will make the plaintiff write an amended complaint
What does without prejudice mean? that you have 1 year to refile even if there is a statue of limitations
Who can extend the time to answer a complaint? It can be formal with a judge or it can be informal by a phone call but either way get an email or letter to CYA
What does an Answer for? To admit or deny the allegations of a Complaint in whole or in part
How long do you have to make an amendment before responsive pleading within 30 days (considered matter or right) or by leave of court after 30 days (courts permission)
How long is a summons considered alive? 90 days – 60 days to serve then 30 days to keep alive

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