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Personal Jurisdiction
1. Long-arm statute
a. Does the states long arm statute apply to D?
i. No
1. No PJ
ii. Yes
1. Go to constitutional analysis
2. Constitutional Analysis
a. If PJ satisfies the statutory analysis, it must be constitutional
i. Have to be sufficient minimum contacts for PJ to be constitutional and fair
b. Was D served with process while physically present in the forum state
i. Yes
1. PJ is constitutional under all circumstances
ii. No
1. PJ will be constitutional if you have General or Specific
jurisdiction
3. General Jurisdiction
a. Examine general contacts with forum state
i. If D is so involved with the state that the state can have PJ over anything
the D does in the state
ii. Contact/purposeful availment must be systematic (not just casual/indirect)
1. If D engages in continuous and systematic activity in the forum
state, Court can find sufficient basis for PJ in any cause of action
iii. Ds domicile state will always have general jurisdiction
4. Specific Jurisdiction
a. Specific jurisdiction is jurisdiction over a cause of action that arises out of Ds
contacts with the forum state minimum contacts test
b. Minimum Contacts Test
i. State interest
ii. Purposeful availment
iii. Arising out of contact
iv. Reasonableness/Convenience of the forum
c. D must have action by the D that is purposefully directed toward the forum
5. Summary
a. Contacts (What are Ds contacts like with the forum state)
i. Purposeful availment
1. D did voluntarily and purposefully reach out to the forum state
ii. Foreseeability
1. Is it foreseeable that the D could be sued in the forum state
b. Relatedness
i. Is cause of action related to contacts?
1. If yes specific jurisdiction
a. Must be fair
b. Is there an undue burden on D/witnesses
c. State interest in being the forum
d. P interest in having a certain forum
2. If no general jurisdiction
a. D must be at-home in the forum
i. Where domiciled/incorporated/principal place of
business
6. Tennessee Personal Jurisdiction
a. In personam
i. Power over the person
b. In Rem
i. Power over specific item of property
c. Quasi in rem jurisdiction
i. Power over particular individuals with respect to property within courts
control
d. In TN
i. Must have sufficient minimum contacts with TN that jurisdiction does not
offend traditional notions of fair play and substantive justice
1. Established by finding that the D engaged in activities directed
towards TN that give rise to an expectation of being subject to suit
there
2. Long-arm statute provides for jurisdiction from
a. Transacting business in TN
b. Committing a tort in TN
c. Ownership of real property in TN
d. Insuring a risk in TN
e. Contract providing for services in TN
3. Also any basis consistent with due process
In-rem/Quasi in rem jurisdiction
-
i. Federal question must appear as part of Ps cause of action as set out in the
complaint
1. Ds answer/defenses are irrelevant
2. If not in complaint, no fed question jurisdiction
b. If yes,
i. You have SMJ under Federal Question Jurisdiction
3. Diversity Jurisdiction
a. Must exceed $75,000 amount in controversy
b. Must be between citizens of different states, OR
i. Citizens of a state and foreigners, OR
ii. Foreign state and citizens of a state
c. Diversity must be complete
i. No party on side of a dispute may be a citizen of the same state as a pary
on the other side
4. Supplemental Jurisdiction
a. Once a case is in federal court, you have to test every single additional claim for
SMJ
b. Every individual claim in federal court must have SMJ
i. If an additional claim doesnt satisfy diversity or fed ?, must look at
supplemental jurisdiction
c. Supplemental jurisdiction
i. Provides a way to get non-federal, non-diversity claims into federal court
1. A non-federal, non-diversity claim can be heard in federal court
UNLESS it is: (Cant dodge diversity with supplemental
jurisdiction)
a. Asserted by a P
b. In a diversity of citizenship case AND
c. Asserted against a citizen of the same state as the P
2. Claim must share a common nucleus of operative fact with the
claim that originally invoked SMJ
a. Always satisfied if the claim arises from same claim or
transaction as the underlying claim
3. Certain claims cannot invoke supplemental jurisdiction
a. In diversity cases, the P cannot use supplemental
jurisdiction to overcome a lack of diversity
4. Supplemental jurisdiction is under the discretion of the court
5. Tennessee SMJ
a. Two courts
i. Circuit
1. Torts w/ unliquidated damages
2. Suits vs. the state
3. Landlord-tenant
4. Eminent domain
ii. Chancery
1. Probate/estate
2. Boundary disputes
Removal
1. D who is sued in state court might be able to remove the case to federal court
a. Xfers case from state trial court to federal trial court
b. Must be done w/in 30 days of service of process
i. All Ds that are served with process are required to join in the removal
2. Generally, any case that meets the requirements for diversity or FQ jurisdiction can be
removed
a. If you are removing based on diversity
i. No removal if ANY D is a citizen of the forum AND
ii. No removal more than one year after the case was filed in state court
3. Process for removal
a. P sues D in state court
b. D wants to remove to federal court
c. Files notice of removal IN FEDERAL COURT, by stating grounds of removal
d. P can move to remand to state court
Venue
1. Which federal court to sue in
2. P can lay venue in any district where:
a. All Ds reside
i. If the case has been removed from fed -> state court, then venue is set in
the
ii. Ds residing for venue purposes
1. Human where domiciled
2. Business In ALL districts where the business is subject to PJ
a. State of incorp + PBB + minimum contacts
b. A substantial part of the claim arose
3. Transfer of Venue
a. Federal district court may transfer the case to another federal district court. Must
be a court that the case could have been filed in.
4. TN Venue
a. County of Ds residence
b. County where claim arose
c. Must be filed in county where land is located for land actions
d. FOR DIVORCE
i. If common county of residence there
ii. If not
1. If D resides in another TN count, Ds county
2. If D resides in another state, Ps County
TN Statutes of limitations
-
Begin running when P discovers, or should have discovered that a cause of action exists
o Slander 6mo.
o 1 yr
PI
Wrongful death
Workers comp
Prof malpractice
Libel
Malicious prosecution
False Imp
Breach of fiduciary duty
Consumer protection act
Tennessee Human rights act
Civil rights statutes before 1990
o Will contest 2 years from probate
o 3 yrs
Property damage
Economic loss
Conversion/detention of personal property
Service of Process
1. D entitled to notice of suit
a. Summons + copy of complaint
2. Can be served by any nonparty 18+ y.o.
3. How?
a. Personal Service
i. Papers given to D personally
ii. Substituted service
1. Process left with someone else, etc., is ok IF
a. Made at Ds usual abode
b. You serve someone of suitable age and discretion who
resides there
iii. Service on agent
1. Process can be delivered to Ds agent which is ok if receiving
service is within the scope of the agency
b. Other
i. Can use whatever methods for serving process that are permitted by state
law of the state where the federal court sits or where service is made
1. Ex. Service by mail
c. Waiver by mail
i. Mail to D a copy of the complaint and copies of a waiver form with a
prepaid means of returning the form. If D executes and mails waiver form
to P within 30 days, D waives formal service of process.
4. Return of service
a. The person who serves process must file a report with the court detailing how
service was made.
b. If server was a civilian, the report is by affidavit (sworn statement, under oath)
5. Service of other documents
a. Done by mailing to the partys lawyer
Discovery
1. Required Disclosures
a. Must be produced even if no one asks for it
i. Must be made within 14 days of Rule 26(f) conference
ii. Must disclose.
iii. Identities of persons who have discoverable info that the disclosing party
may use to support your claims or defenses
iv. Documents and things that you may use to support your claims or
defenses. You may produce copies, or a description of these things
v. Computation of monetary relief and documents supporting it
vi. Insurance coverage that might cover all or part of the judgement in the
case
2. Expert Witnesses
a. When the court directs, each side must identify expert witnesses who may be
used at trial
i. ONLY if you plan to use them at trial
3. Required Pretrial Disclosures
a. No later than 30 days before trial, must give detailed information about trial
evidence including:
i. Identity of witnesses to testify live or by deposition
ii. Documents/ESI/Things to be introduced at trial
Discovery Tools
1. Can begin requesting discovery after the 26(f) conference
2. How can you get information from nonparties?
3. Depositions
a. Person gives live testimony in response to questions by counsel or pro se parties.
b. Questions are usually oral, but can be written
c. Deponent testifies under oath
d. Deposition is recorded by sound or video or stenographic ally and a transcript can
be made
e. Depositions are made from present recollection i.e. deponent doesnt have to
bring documents/notes with them
f. You can depose either a party or a nonparty
i. Need to subpoena a non-party, party can be served notice of a deposition
ii. Subpoena duces tecum requires the deponent to bring materials with them
g. Cannot take more than 10 depositions or depose the same person twice without
permission of the court
4. Using depositions at trial
a. Impeach the deponent
b. Any purpose if the deponent is an adverse party
5.
6.
7.
8.
9.
ii. Requesting party will make a motion to compel answers, and the court
will decide whether the objections were legitimate
c. No response to discovery request
i. Responding party fails completely to participate/respond to discovery
ii. May lead to sanctions
d. Sanctions
i. Party seeking sanctions must certify that they tried in good faith to get the
information without court involvement
1. Partial Response
a. Two steps
i. Move for an order compelling the party to answer
the unanswered questions, plus costs (atty fees) of
bringing the motion
ii. If the party violates the compelling order, RAMBO
sanctions + costs + fees AND could be held in
contempt for violating a court order
2. No response
a. RAMBO sanctions plus costs
ii. RAMBO sanctions
1. Gives judge a choice of
a. Establishment order (establishes facts as true)
b. Strike pleadings of the disobedient party (as it relates to
discovery)
c. Disallow evidence from the disobedient party (as to
discovery)
d. Dismiss Ps case if bad faith is shown
e. Enter default judgment against D if bad faith is shown
Multiparty Litigation
1. Proper Ds and Ps
a. Arise from same T/O
b. Raise at least one common question
2. Necessary and indispensable parties
a. Court might force some nonparty to join the case
i. If the nonparty is necessary
b. Who is necessary?
i. Without the absentee party, the court cannot accord complete relief among
the existing parties (in order to avoid multiple suits) OR
ii. Absentee partys interest may be harmed if he or she is not joined OR
iii. Absentee party claims an interest that subjects a party (usually D) to a risk
of multiple obligations
c. Can the absentee party joined
i. If you are necessary, we have to see if joinder is feasible
1. Is there PJ over the party?
Impleader
Intervention
1. Nonparty brings themselves into the case. Can come in to assert a claim (P) or defend a
claim (D). Court can move there sides.
2. Intervention of right
a. 3rd partys interest may be harmed if they are not joined and are not adequately
represented in the litigation.
3. Permissive intervention
a. 3rd partys claim or defense and the pending case have at least one common
question.
b. At the discretion of the court
c. Usually ok unless intervention would cause delay/prejudice to a party
4. Must have SMJ over each claim
Class Action
1. Requirements
a. Numerosity
i. Too many class members for practicable joinder. No magic #
b. Commonality
i. There is some issue of law or fact that is common to all class members, so
resolution of that issue will generate answers for every member of the
class in one stroke
c. Typicality
i. Reps claims are typical of those of the class
d. Representative adequate
i. The class representative will fairly and adequately represent the class
2. Have to fit the class within one of three types
a. Prejudice
i. Class treatment necessary to avoid harm either to class members or to the
non-class party
3. TRO must state its terms with specificity, describe in detail what D must do/refrain from
doing, and state WHY the TRO was issued, and why the threatened injury was
irreparable
4. If the TRO is issued it must be served on the D as soon as possible
a. D can move to dissolve or modify the TRO
5. TRO only effective for 14 days and can be extended once
a. Purpose isnt for it to be long-term, just to last to get you to a hearing for a
preliminary injunction
Pretrial Adjudication
1. Voluntary dismissal
a. P can make a motion for voluntary dismissal at any time
b. Have a right to a voluntary dismissal (notice of dismissal) before D files answer
or motion for sum. Judg.
c. If P files a timely notice of dismissal, the case is dismissed w/o prejudice
i. P can re-file
d. You can only do it w/o prejudice once, if you file a notice of dismissal again the
case is dismissed with prejudice
2. Default and default judgment
a. D does not respond to the complaint in time (21 days after being served with
process or 60 days from mailing of waiver if you waived service)
b. Default notation by the court clerk on the docket sheet of the case
i. P has to actually file for default
ii. Default cuts off Ds right to respond
iii. Does not entitle you to recover
c. Default judgment
i. Clerk of court can enter judgment if:
1. D made no response at all
2. Claim itself is for a certain sum of money
3. Claimant gives an affidavit of the sum owed AND
4. D is not a minor or incompetent
ii. If any of those is not true
1. P can apply to judge for default judgment
2. Judge will hold a hearing
a. D only gets notice of the hearing if he has appeared in the
case
b. Cant get more via default judgment then you asked for in
complaint
iii. Setting aside default judgment
1. D can move to set aside by showing good cause + a viable defense
a. Excusable neglect ex.
3. Motion to Dismiss for Failure to State a claim
a. Filed in pretty much every case
b. Whether the case belongs in the stream of litigation at all
c. Court ignores Ps legal conclusions and looks ONLY at Ps allegations of fact and
asks if these facts were true, would P win a judgment
i. If the answer is no, the law doesnt recognize a claim on those facts so the
case should be dismissed
ii. Some courts will let the P amend their complaint
d. If the motion is filed AFTER the D has filed an answer, its a motion for
judgment on the pleadings
e. 21 days from service in federal
f. 30 days in TN
4. Motion for summary judgment
a. 30 days in TN
b. P stated a claim, so in the stream of litigation
c. Purpose of trial is to resolve disputes of fact
d. Moving for summary judgment, moving party must show
i. There is no genuine dispute of material fact AND
ii. That the moving party is entitled to judgment as a matter of law
e. Summ judg is discretionary
f. Court can and will look at evidence
i. Affidavits
ii. Declarations
iii. Deposition testimony
iv. Interrogatory answers
3.
4.
5.
6.
ii. Grounds/Timing
1. Clerical error
a. Can be done anytime
2. Mistake, excusable neglect
a. Done w/in reasonable time (no more than 1 yr)
3. New evidence that could not have been discovered with due
diligence for a new trial motion
a. Done w/in reasonable time (no more than 1 yr)
4. Judgment is void (No SMJ)
a. Reasonable time (no maximum)
Appeal
1. Final judgment rule
a. Can only appeal from final judgments
b. Ultimate decision by the trial court on the merits of the entire case
c. File notice of appeal in trial court within 30 days of entry of final judgment
d. Question: Is there anything left for the TC to do on the merits of the case?
2. Interlocutory Review
a. Appealable non-final judgments
b. Reviewable as a right
i. Orders granting, modifying, refusing preliminary or permanent injunctions
c. Interlocutory Appeals Act
i. Allows appeal of a nonfinal order if
1. Trial judge certifies that it involves a controlling issue of law
2. As to which there is substantial ground for difference of opinion
AND
3. CoA has agreed to hear it
d. Collateral order exception
i. Appellate court has discretion to hear ruling on an issue if it
1. Is distinct from the merits of the case
2. Involves an important legal question and
3. Is essentially unreviewable if the parties wait for a final judgment
3. Standard of review
a. When a district judge decides a question of law
i. De novo review review with no deference
b. In a non-jury trial when the district judge determines questions of fact the CoA
will affirm unless findings are CLEARLY ERRONEOUS
i. Due regard must be given to the trial judges ability to assess the
credibility of witnesses at trial
c. In a jury trial when the jury decides questions of fact, the CoA will affirm unless
reasonable people could not have made the finding
d. On discretionary matters the CoA will affirm unless the trial judge abused
discretion
e. No reversal if the error is harmless
Preculsion
1. Basic Idea
a. Looking at the preclusive effect of earlier judgments on the merits
b. Look at whether a judgment already entered precludes litigation of any matters in
another case
2. Claim Preclusion (Res Judicata)
a. Can only sue on a claim once
i. Requirements
1. Case 1 and Case 2 brought by the same claimant against the same
2. Case 1 ended in a valid final judgment on the merits
a. Unless the court says otherwise, a judgment will be on the
merits unless the judgment was based on jurisdiction,
venue, or lack of an indispensable party
3. Case 1 and Case 2 asserted the same claim
a. Majority view: Claim is any right to relief arising from a
T/O
b. Minority view: There are separate claims for property
damages and for personal injuries because those are
different rights
3. Issue Preclusion (Collateral Estoppel)
a. Narrower then claim preclusion
b. Issue was litigated in case 1, same issue comes up in case 2. If issue preclusion
applies, we will not allow the issue to be relitigated in case 2. Deem it as
established in case 2.
c. Requirements
i. Case 1 ended in a valid, final judgment on the merits
ii. Same issue was actually litigated and determined in Case 1
iii. The issue was essential to the judgment in Case 1
d. Who can issue preclusion be asserted against?
i. Can only be asserted against someone who was party to case 1
1. Or represented by a party in case 1
e. Who can USE issue preclusion?
i. Can be used BY someone who was in case 1
ii. Nonmutual issue preclusion (party attempting to use wasnt in case 1)
1. Nonmutual defensive issue preclusion
a. Party using it not in case 1 and is D in case 2
i. As long as the person its being used against had a
chance to litigate the issue in case 1 most courts will
say ok
2. Nonmutual offensive issue preclusion
a. Party using it not in case 1 and is P in case 2
b. Most courts will say no factors
i. Clear trend to allow if not unfair