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MEE CIV PRO, PERMISSIVE joinder of parties, MOTIONS, subject matter juris.…
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MOTIONS
MOTION TO DISMISS: rule 12(b), may be made prior to filing answer; requires court to (i) consider the facts in the light most favorable to the non-moving party AND (ii) determine whether there's any basis upon which relief can be granted for non-moving party
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MOTION FOR SUM JUDGEMENT - granted when (i) theres no genuine issue of material fact AND (ii) the movant is entitled to judgement as a matter of law. court must review evidence in light most favorable to the NON moving party.
issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non moving party
as to materiality only disputes over facts that might affect the outcome of the suit will properly preclude the entry of sum judgement. factual disputes that are irrelevant or unnecessary not counted.
MOTION FOR JUDGEMENT ON THE PLEADINGS - motion for any non-waivable defense may be made at any time early enough NOT to delay trial (but referred to as MJP if made after D has answered)
GROUNDS FOR MOTION AND WAIVER - specified grounds for party to bring motion to dismiss claim(s): these are deemd waived if not raised in the first responsive pleading or motion to dismiss (i) lack of PJ; (ii) improper venue (iii) insufficient process (iv) insufficient service of process; and (v) lack of SMJ (never waivable) (vi) failure to state a claim upon which relif can be granted (vii) failure to join a necessary party
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personal juris
long arm
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minimum contacts
- relatedness (D's conduct in relation to the action)
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- purposeful availment= reasonably foreseeable to be sued in state (fact intensive)
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VENUE
If all D's reside in same state - appropriate where they reside (2) where substantial part of events/omissions occurred; or (3) where property situated
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TRANSFER ANALYSIS IF PROPER WHERE VENUE FILED: court may transfer if (i) needed for the convenience of the parties and witnesses OR interest of justice; AND (ii) action could've been brought initially in receiving court
IF IMPROPER - court MUST (i) dismiss the case; OR (ii) transfer the case to a proper court if interests of justice require it
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REMOVAL
I) fed court has SMJ (ii) all D's consent (iii) no D is resident of forum unless removal sought under diversity juris basis (iv) removal sought w/in 30 days
PROCEDURE - notice of removal filed in fed DC located in state pending (i) stating basis for fed juris (ii) including copies of documents filed in state court, must serve NoR on all parties and state court otherwise it's automatic
APPEALS
final judgement rule party may only appeal from final judgement/decision (one which ends litigation on the merits all claims resolved) :warning: thus precluding appeal from any decision adjudicating some not all claims
rule 54(b) exception (i) action has multiple parties or claims (ii) court directs entry of a final judgement for SOME of the claims or parties; AND (iii) the court expressly determines there's no just reason for delay
STAT EXCEPTIONS - under fed law a party may immediately appeal certain court orders as of right relating to (i) injunctions (ii) receiverships (iii) orders affecting the possession of prop...
CERTIFICATION OF CLASS ACTION - order granting/denying application may be appealed if (i) files w/in 14 days after order entered (ii) AND court of appeals agrees to hear appeal. an appeal doesnt stay proceedings in DC unless the DC judge or court of appeals so orders it
CERTIFIED APPEAL EXCEPTION - (i) a fed DC judge certifies grounds for immediate appeal AND (ii) court of app agrees to permit (ii) application made w/in TEN days of order
PRECLUSION
ISSUE PRECLUSION (collateral estoppel) - may be invoked if (i) a valid and final judgement on the merits rendered in first action (ii) issue identical to issue decided in prior action (iii) issue actually litigated, determined, and essential in prior action; AND (iv) party against whom enforcement being sought had full and fair opportunity to litigate the issue in the first action
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