Georgia Bar Review

Additional Claims in SMJ

Each claim must be tested as to whether it will have diversity or FQ to get into federal court

Equitable Relief and SMJ

Either view will get claim into federal court - Does the damage to the plaintiff amount to more than $75k - Would it cost D more than $75k to comply with the relief

Rule 12(b) Defenses

(1) Lack of subject matter jurisdiction (2) Lack of personal jurisdiction (3) Improper venue (4) Improper process (problem with the papers) (5) Improper service of process (6) Failure to state a claim (7) Failure to join an indispensable party 2, 3, 4, and 5 are all waivable after the first response

Counterclaim

- A claim against an opposing party - Upon D serving a counterclaim against, P, P must respond within 21 days of service

Defamation

- A defamatory statement - Of and concerning the plaintiff - Publication to a third party - Damages

Impleader

- A defending party is bringing in someone new - Almost always a claim for indemnity or contribution (shifts liability from D to third party)

Fraud (Tort)

- A false representation - Knowledge of falsity by the person making representation (scienter) - Intention to induce reliance - Justifiable reliance - Damages

Battery

- A harmful or offensive contact - With the plaintiff's person'/body

False Imprisonment

- A sufficient act of restraint - Within a bounded area

Trespass to Land

- Act of physical invasion - Of land (real property)

Trespass to Chattels and Conversion

- Act of physical invasion - Of personal property

Strict Liability (Abnormally Dangerous Activities)

- Activity is incapable of being conducted except with a high degree of risk - If harm occurs, it is likely to be severe - The activity must be uncommon in it s location

Aggregating Claims in SMJ

- Aggregate the claims of any one P against any one D, regardless of whether they are related - When suing joint tortfeasors, use the total value of the claim

Scope of Discovery

- Anything relevant to a claim or defense and proportional to the needs of the case

TRO Requirements

- Applicant must file a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until the other side is heard - Applicant's lawyer certifies in writing her efforts to give oral or written notice to D or D's lawyer

Compulsory Counterclaim

- Arises from the same T/O as P's claim - You must file this in the pending case or the claim is waived

Interrogatories

- Can be sent to parties only - Have 30 days from service to respond - Max is 25 questions to be asked

Requests for Admission

- Can only go to parties - Do not have to answer if you have done a reasonable inquiry to find the answer

Claim Preclusion (Res Judicata)

- Case 1 and 2 were brought by the same claimant against the same defendant - Case 1 ended in a valid final judgment on the merits - Case 1 and 2 asserted the same claim

Issue Preclusion (Collateral Estoppel)

- Case 1 ended in a valid final judgment on the merits - The same issue was actually litigated and determined in Case 1 - The issue was essential to the judgment in Case 1 - Can only be used against somebody who was a party to Case 1 or in privity with a party

Crosslaim

- Claim against a co-party - Must arise from the same T/O as the underlying action, but is not compulsory

Service of Process

- Consists of (1) a summons and (2) a copy of the complaint - Any nonparty who is at least 18 can serve process - Service must take place within 90 days of filing the complaint

Removal to Federal Court

- D can remove a case that meets the requirements for diversity of citizenship or FQ - D must remove within 30 days of service of the first paper that shows the case is removable - All Ds that have been served with process must join in the removal - P can never remove EXCEPTIONS (for diversity only) - No removal if any D is a citizen of the forum (unless instate D is dismissed early) AND - No removal more than one year after the case was filed in state court (unless bad faith by P)

Procedure of Removal to Federal Court

- D files a "notice of removal" in federal court, stating grounds of removal - D attaches all documents that were served on her in state action - Serves a copy of the notice of removal on adverse parties - Then files copy of notice of removal with the state court

Strict Product Liability

- Defendant must be a merchant seller - Product must be defective - The defect existed when the product left the defendant's hands - The plaintiff made a foreseeable use of the product

Cases Federal Courts May Not Hear

- Divorce - Alimony - Child Custody - Estate Probate

Permissive Counterclaim

- Does not arise from the same T/O as P's claim - You are not required to file it in this case

Duty to Invitee

- Duty of ordinary care - Duty of ordinary care and a duty to inspect premises for static conditions

Duty to Licensee

- Duty of ordinary care with respect to active negligence - Duty of ordinary care when a static condition is discovered

Remand to State Court

- If P thinks removal was improper for any reason other than lack of SMJ, then must move to remand no later than 30 days after notice of removal was filed in federal court - If P thinks removal improper due to lack of SMJ, may move to remand at any time

Special Damages

- Loss of money or something that money can buy - Must plead with particularity

Waiver of Formal Service

- Mail to D a notice and request to waive formal process, including a copy of the complaint and 2 copies of the waiver form - If D executes and mails the waiver form within 30 days, then waived

Work Product

- Material prepared in anticipation of litigation - Can be generated by lawyer or any representative of the party

Duty to Discovered Trespasser

- May not injury willfully or wantonly - Duty to remove a static condition that may be a death trap

Medical Exams (Discovery)

- Must get a court order (show that person's health is in actual controversy and good cause)

Requests to Produce

- Must respond within 30 days of service - Parties only, but can subpoena non parties to get the same things

Strict Liability (Animals)

- No strict liability for domesticated animals unless you know of (a) the dangerous propensities of the animal or (b) if there is a leash law at site of injury and not on leash - Duty of ordinary care for livestock - Strict liability for wild animals unless they are indigenous

Intervention

- Nonparty brings himself into the case - Must be necessary and feasible to join

Depositions

- Nonparty should be subpoenaed to compel attendance - Notice of deposition for a party - Cannot take more than 10 depositions or depose the same person twice without court approval - Deposition cannot exceed one day of seven hours unless court stipulates

Intentional Infliction of Emotional Distress

- Outrageous conduct - Must be directed at the plaintiff - Some type of physical manifestation (symptom of distress)

Cases Exclusive to Federal Court Jurisdiction

- Patent infringement - Bankruptcy - Some federal securities and antitrust claims

Defense of Others (Tort Defense)

A person may defend another person in the same manner and under the same conditions as the person attacked would be entitled to defend himself

Defense of Property (Tort Defense)

A person may use reasonable force to defend his real or personal property; deadly force is never necessary to defend property

Georgia Shopkeeper Detention Statute

A shopkeeper may detain a personal for reasonable amount of time upon a reasonable suspicion of shoplifting

Discipline (Tort Defense)

Allows for such persons as parents or teachers to provide corporal punishment of children so long as it si not excessive

Georgia Defense of Property (Tort Defense)

Allows the use of deadly force to protect the owner's habitation or personal property, and all other property when necessary to prevent the commission of a forcible felony

Methods of Service

- Personal Service- papers are given to D personally anywhere - Substituted Service- fine so long as (1) it is defendant's usual abode AND (2) serve someone o suitable and age and discretion who resides there - Service on D's Agent- can be delivered to D's agent so long as receiving service in the scope of the agency - State Law Methods- methods that are permitted by state law (service by mail)

Domicile of a Human

- Physical presence AND - The intent to make that your home permanently or for an indefinite time

Types of Class Action

- Prejudice- class treatment necessary to avoid harm either to class members or to the non-class party - Injunction or Declaratory Judgment- D treated the class members alike (employment discrimination) - Damages- common questions predominate over individual questions AND class action is the superior method to handle the dispute

General Damages

- Presumed to flow from the commission of a tortious act - Considered to be noneconomic or non pecuniary in nature (pain and suffering)

Assault (Tort)

- Reasonable apprehension of - Imminent battery

Answer to Complaint

- Respond to allegations in the complaint (admit, deny, state that you lack sufficient information to admit or deny) - Raise affirmative Defenses- indirect a new fact into the case that will allow D to win

Federal Personal Jurisdiction (2 steps)

- Satisfy a state statute AND - Satisfy the Constitution (Due Process)

Process of Rule 11 Sanctions

- Serve the motion on other parties but cannot file it - Party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions - If they do not do so, then sanctions can be filed

Complaint Requirements

- Statement of grounds of SMJ - Short and plain statement of the claim showing entitled to relief (must plead facts supporting a plausible claim) - Demand for relief sought (fraud, mistake and special damages are to be pleaded with specificity)

Requirements to Discover Work Product

- Substantial need - Not otherwise available

Federal Domicile of Decedents, Minors, or Incompetents

- Such person must be sued through a representative - Use the citizenship of the minor, decedent, or incompetent, because the rep's domicile is irrelevant

Diversity of Citizenship and Alienage Requirements for SMJ

- The case is either (a) between citizens of different states or (b) between a citizen of a state and a citizen of a foreign country AND - The amount in controversy exceeds $75,000

Supplemental Jurisdiction

- The claim we want to get into federal court must share a common nucleus of operative fact with the claim that invoked federal SMJ - BUT in diversity cases only, additional claims asserted by plaintiffs cannot be brought in under supplemental jurisdiction

Transfer of Venue

- The transferee must be a proper venue and have PJ over the defendant - Transferee must be proper without waiver by D - Court can transfer to any district if all parties consent an the court finds cause for the transfer

Slander Per Se Categories

- Trade office or profession - Serious crime - Loathsome disease - Serious sexual offense

Diversity Jurisdiction Amount in Controversy

- Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000 - P who wins less than $75,000 in federal court may be required to pay D's litigation costs

Duty (Negligence)

- You owe a duty to all people who are foreseeable victims of your failure to take precautions - Rescuers and viable fetuses are foreseeable as a matter of law

Self Defense (Intentional Tort Defense)

-A person justified in suing reasonable force to prevent what she reasonably believes to be an imminent threat of force against her

Wrongful Death

Brought by a decedent's beneficiaries for their own loss of support and companionship

Survival Action

Brought by a decedent's estate based on claims that the decedent could have brought had he lived, and are maintained by the deceased plaintiff's personal representative

Georgia Children Immunity from Tort Liability

Children under the age of 13 are statutorily immune from all tort liability

Constitutional Analysis of Personal Jurisdiction

Contact - Contact must result from purposeful availment of D's voluntary act - It must be foreseeable that D could get sued in the forum Relatedness - Specific PJ- where the claim arises from D's contact with the forum - General PJ- D must be at home in the forum Fairness (only assessed in Specific PJ cases only) - Burden on D and witnesses- D must show that jurisdiction puts her at a severe disadvantage in the litigation (relative wealth of the parties is not determinative) - State's Interest- the forum state may want to provide a courtroom for its citizens who are allegedly being harmed by out-of-staters - P's Interest- maybe injured and wants to sue at home

Federal Domicile of Organizations

Corporations- domiciled where incorporated and where it has its principal place of business Unincorporated Association (partnership or LLC- citizenship of all of its members

Consent (Intentional Tort Defense)

Express Consent - Speaking consenting to an action Implied Consent - Arises through custom and usage or through a plaintiff's own conduct

Required Discovery Disclosures

Initial Disclosures (within 14 days of Rule 26(f) conference) - Identities of persons who have discoverable information that you may use to support your claims or defenses - Documents and things that you may use to support your claims or defenses - Computation of monetary relief including documents and ESI supporting it - Insurance coverage that might cover all or part of the judgment of the case Expert Witnesses - Must identify expert witnesses who will be used at trial - Must include identity of EW and written report (all opinions EW will express, bases for the opinions, facts used to form the opinions, EW's qualifications, and how much EW is being paid) Pretrial Required Disclosure - No later than 30 days before trial, must give detailed information about trial evidence including identity of witnesses to testify live or by deposition

Class Action Requirements

Initial Requirements - Numerosity- too many class members for a practicable joinder - Commonality- some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke - Typicality- Rep's claims are typical of those of the class AND - Representative Adequate- class representative will fairly and adequately rep claims

Intrusion (Tort)

Interference with a plaintiff's seclusion in a way that would be objectionable to a reasonable person (P must have expectation of privacy)

Relation Back

Joining a Claim - Pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading Changing a Defendant - Concerns the same conduct, transaction, or occurrence as the original - New party knew of the case case within 90 days of filing - She also knew that, but for the mistake, she would have been named originally

Specific Jury Verdict

Jury answers in writing specific written questions bout the facts in dispute, but does not tell us who wins or loses

General Jury Verdict

Just says who wins and, if P wins, what relief is

Duty to Undiscovered Trespasser

May not set up a death trap - No duty owed in remedying a static condition

Supplemental Pleadings

Moves to add additional causes of action for things that happened after the pleadings were filed (must move for them)

Demanding a Right to Jury Trial

Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue

Complete Diversity Rule

No SMJ if any P is a citizen of the same state as any D

Georgia Stand Your Ground Statute (Tort Defense)

No duty to retreat when death or serious personal injury is threatened against you or third person

Forum Non Conveniens

There is a more convenient court in another judicial system, so transfer is not possible - Either dismiss or stay proceedings

Venue

P may lay venue in any district where - All defendants reside (or where any D resides if all Ds are in the same forum state) OR - A substantial part of the claim arose

In Personam Jurisdiction

P sues to impose a personal obligation on D - Statutory Analysis- each state is free to have its own statutes for in personam jurisdiction - Constitutional Analysis- does D have "such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice"

Federal Question Cases and SMJ

P's claim itself must arise under federal law Is P enforcing a federal right? - If yes, case gan go to federal court - If no, case cannot go to federal court

In Rem and Quasi In Rem

Power over D's property in the forum - Must be attached by the court at the outset of the case - D's contacts with the forum must still meet the constitutional test applied (Contacts/Relatedness/Fairness)

Amending Pleadings

Right to Amend - P has the right to amend once within 21 days after D serves her first Rule 12 response - D has a right to amend once within 21 days of serving his answer No Right to Amend - Seek leave of court, and will be granted if justice so requires (factors are delay, prejudice, and futility of amendment) Variance - Where evidence at trial does not match what was pleaded, OK if D doesn't object, but no if D does

Erie Doctrine

STEP 1 Is there some federal law on point that directly conflicts with state law - If so apply federal law as long as it is valid STEP 2 If no federal law on point, the federal judge must apply state law if the issue to determined is substantive - Elements of a claim or defense; statute of limitations; rules for tolling statutes of limitations; and conflict (or choice) of law rules STEP 3 If no federal law on point and the issues is not one of the four, federal judge must determine whether rate issue is substantive (factors) - Outcome determinative- would applying or ignoring the state rule affect the outcome of case - Balance of interests- does either federal or state system have strong interest in having its rule applied - Avoid forum shopping- if the federal court ignores state law on this issue, will it cause parties to flock to federal court

Slander

When defamation is spoken

Libel

When defamation is written or broadcast

"Tag" Jurisdiction

Subject to state's jurisdiction if D is served with process while in the forum state

False Light (Tort)

The Dissemination of information that is in some way inaccurate and that would be objectionable to a reasonable person

Rule 11

When signing documents, the attorney certifies that - The paper is not for an improper purpose - The legal contentions are warranted by law - The fact contentions and denials of factual contentions have evidentiary support

Additional Type 3 (Damages) Class Action Requirements

The court must notify class members that they are in a class; notice must tell them that they can opt out, they'll be bound if they don't, and they can enter a separate appearance through counsel

Public Disclosure of Private Facts (Tort)

The dissemination of (a) factually accurate information that (b) would normally be confidential, and (c) the disclosure of which would be objectionable to a reasonable person

When do you Test for Diversity of Citizenship

When the case is filed

Timing of Response

To avoid default, D must respond by motion or answer within 21 days after service of process

Appropriation (Tort)

Use of the plaintiff's name or picture for commercial advantage without permission

Necessity (Tort Defense)

Used only in conjunction with intentional torts to property Public Necessity - An unlimited privilege to protect a lot of people Private Necessity - A qualified privilege to protect a limited number of people

Adding Necessary and Indispensable Parties

Who is Necessary - Without A, the court cannot accord complete relief among existing parties - A's interests may be harmed if he is not joined OR - A claims an interest that subjects a party to a risk of multiple obligations Is Joinder Feasible - Is there PJ over A - Joinder will not mess with diversity jurisdiction