Federal & MI Civil Procedure

Subject Matter Jurisdiction 1. Defined the courts power over a particular type of case. 2. Michigan State Courts a. The Circuit Courts are courts of original and general jurisdiction. b. R: The MI circuit courts have SMJ over all kinds of actions, UNLESS there is exclusive jurisdiction (required) in some other forum. i. Courts of Exclusive Jurisdiction ii. District Court over cases involving $25,000 or less. iii. Court of Claims over actions against the state/state agencies iv. Fed. Courts over admiralty, maritime etc. 3. Federal Courts a. Federal courts are courts of limited jurisdiction so there must be a jurisdictional basis for each claim filed in federal court. b. 2 Primary jurisdictional bases: i. Arising under federal law (aka federal question) 1. A claim does arise under federal law if the claim is either: (1) created by fed law, OR (2) was created by state law but depends substantial federal question. 2. Well Pled Complaint Rule: The federal issue must appear on the face of Ps well pled complaint as part of Ps own claim and not by way of Ds defense. a. Ex: P files in fed court. Complaint alleges that D will raise a defense that enforcing contract would violate federal law. Result Ps claim does not arise under fed law. ii. Diversity Jurisdiction 1. Fed courts have jurisdiction over claims in which there is complete diversity and in which the amount in controversy exceeds $75,000. a. Complete Diversity of Citizenship i. Complete Diversity R: No single P may be a citizen of the same state as any single D. 1. Ex: MI-P v. NB-D, CA-D = complete diversity 2. Ex: MI-P v. IN-D, MI-D = no complete diversity ii. Citizenship R: 1. Individuals Domicile: A person is domiciled where their true home is w/ the intent to

stay forever, or return when the lawsuit is over. 2. Corporations R: A corporation is domiciled where (1) its principal place of business is located, (2) where its headquarters are located, OR (3) in the state of incorporation. 3. Unincorporated Associations Defined: Any unincorporated assoc. is any association that is not a corporation (LP, LLP, LLLP, PLLC, LLC). R: Every single member counts as a separate named party for diversity purposes. 4. Aliens a. Not admitted for PR R: A pure alien can sue or be sued by a nonalien and there will be diversity. (pure v. pure = no diversity) b. Admitted for PR R: Domicile is state of permanent residence (not considered aliens at all for diversity purposes) 5. American Citizen Domiciled Outside US R: can't sue or be sued based on diversity b/c not a citizen of any state, making it impossible to have diversity. b. Amount in Controversy i. Must exceed $75,000 ii. Ps viewpoint governs iii. If P wants equitable + legal remedies, total value must exceed 75 iv. 2 Ps cant aggregate claims together to hit 75,001. If at least 1 P has $75001 in controversy, the rest of the Ps can get into fed court too (?).

v. The amount alleged governs, not what was actually recovered c. Alternative Ways to Get Into Federal Court i. Supplemental Jurisdiction R: Where there are 2 claims, and one of them has a primary jurisdictional base and the other does not, the federal court nonetheless has discretion to assert supplemental jurisdiction over both claims if they derive from a common nucleus of operative fact. 1. Exception If the only primary jurisdictional base is diversity, the plaintiff cannot use supplemental jurisdiction to bring additional claims against nondiverse parties. ii. Removal & Remand 1. Defined Within 30 days of service of a state court complaint, Ds may remove the action from state court to the federal court that geographically embraces the state court, if there is SMJ over the removed claims. But the P may move to remand the action back to the state court within 30 days of removal. The Fed. Ct. must remand if there is no jurisdiction. a. Exception, Removal only If however, the only jurisdictional basis is diversity, there can be no removal if any single D is a citizen of a state where the action was filed. 4. The Erie Doctrine a. 2 pre-requisites to application: i. Fed court is resolving a state law claim that does not arise under federal law (so either diversity or supplemental). ii. There is a conflict between a provision of state law and a provision of the federal law. b. R: Federal law governs re: (1) fed statute, (2) Fed. R. Civ. P., (3) Fed. R. Evid., (4) issue re: trial by jury. c. R: If a conflict does not involve one of the above 4, then state law governs where the difference between state and federal would alter the outcome of the case. d. Another way to put it R: State law governs unless the conflict involves a fed statute, fed. R. civ. P, fed. R. evid, or issue re: trial by jury. Personal Jurisdiction 1. Defined: Personal jurisdiction is the power of the court over the Ds. 2. MI Rules: a. MI courts have personal jurisdiction if 2 things are true: (1) MI law itself must grant PJ, AND (2) the law must be constitutional.

b. Personal Jurisdiction - Under MI law, 3 bases for PJ: (1) presence, (2) long arm statute, (3) consent. i. Consent 2 kinds 1. Express a. D will expressly appoint his agent to accept process on its behalf in MI b. D enters contract w/ term expressly consenting to be sued in MI. c. D expressly consents to PJ. 2. Implied a. R: Where D fails to raise a PJ objection in his 1st response to the complaint, he has waived the objection. D must file his 1st response within 21 days of personal service or 28 days if served any other way. ii. Presence 3 kinds: 1. Actual, voluntary physical presence in MI where he is served w/ process. 2. D is domiciled in MI. A Ds true home can be in MI even if D is not physically present in the state 3. D is systematically, regularly and continuously present in ongoing state business. iii. MI Long Arm Statute R: There is PJ if LIMIT 1. Land D owns/possesses 2. Injury to P in MI from Ds tort 3. Matrimony D has a connection to MI from which a matrimonial claim derives. 4. Insurance Contract D enters into an insurance contract for a risk located in MI. 5. Transaction of Business D entered into a transaction in MI from which the lawsuit derives. c. Constitutional Even if MI law grants PJ, the law must also be constitutional. i. R: PJ is constitutional if the D engaged in such minimum contacts that would not offend traditional notions of fair play and substantial justice. 1. Issue: Whether D purposely availed itself of the benefits of MI law. Could the D reasonably expect to be sued in MI? 3. Federal Court R: In federal court, unless there is a statute that expressly grants PJ, a federal court merely borrows the same PJ law of the state where it sits. Service of Process 1. Gen. R: Process is proper if the method of process is (1) proper under the forums own rules, AND (2) Constitutional. 2. Proper Federal Court Methods (AWASP) (120 days to serve)

a. Abode Service An authorized process server may leave the process @ Ds last and usual abode w/ someone of suitable age and discretion residing there. (21 days to respond?) b. Waiver P may simply mail the complaint to D w/ a request that D waiver formal process. If D waives, then D has 60 days to respond. c. Agent Service (corp or pship) Authorized process server must make in hand delivery on an authorized or managing agent of D. d. State Methods A federal court may also borrow the available method of process in the state in which the court sits. e. Personal Service An authorized process server must make personal in-hand delivery on the person of the D 3. Proper MI Methods In MI state court, an authorized process server is any adult nonparty who has 91 days in which to serve process. a. Individuals i. Registered mail + affidavit swearing mail was sent ii. In hand delivery on the person of the D iii. Publication is allowed only if the following 4 are true: 1. D must own property in MI 2. Affidavit swearing D outside MI or cant otherwise be located. 3. Registered mail to Ds last known address 4. Publish 1x/wk for four (4) weeks in a row b. Corporations PS on: i. A registered agent/officer ii. On a director/trustee/person in charge of principal office (+) registered mail to office c. Partnerships PS on: i. Any general partner ii. On any person in charge of principal office (+) registered mail to gen. partner. 4. Constitutionality R: Process is constitutional if it is reasonably calculated to apprise interested parties of litigation. Venue 1. Federal R: Venue is proper in a district where either: a. Any D resides IF all Ds reside in the same state (not that venue is not proper where P resides), OR i. People reside where they are domiciled ii. Corps and pships reside anywhere where they have significant contacts b. Any substantial part of events/omissions/property subject to the action is located (i.e., where any substantial part of the claim arose). 2. Michigan Gen. R: Venue is property in a county where any D resides UNLESS no Ds reside in MI in which case it becomes property where any P resides a. People reside where they are domiciled b. Corps and Pships reside anywhere they conduct business.

c. Exceptions: i. Land R: In an action involving land, venue is also proper in the county where the land is located. ii. Govt Unit R: In an action against a governmental unit, venue is proper in any county where it does use its authority. 3. Michigan Tort R: In a tort action in MI, venue is proper in the county where: a. D resides + claim arose b. P resides + claim arise c. Where any D resides UNLESS no D resides in MI, then venue is proper in the county where P resides. 4. Objecting to Improper Venue file a motion to dismiss for improper venue or to transfer to a proper venue in the 1st response to the complaint, which will be granted in the courts discretion. Pleadings 1. General Requirements re: Contents of the Complaint a. Federal Court R: Complaints must contain facts which place the adversary on notice of plausible claims asserted against it (i.e., notice pleading). Moreover, in federal court, fraud claims must be pled w/ more particularity. b. MI Court R: In MI state court, complaints must contain specific allegations of fact which constitute a cause of action (i.e., fact pleading). 2. Amendments a. Gen R. In both federal and state court, amendments shall be granted freely to do justice and serve the merits of the litigation. b. Relation Back of Amendments to Conform to SoL Period i. Federal Court: 1. New claims relate back in time if the new claims derive from the same transaction/occurrence as the earlier timely filed claims. 2. New parties relate back in time if 2 things are true: (1) the claims against the new parties derive from the same transaction/occurrence as earlier timely claims, AND (2) the new party must have prior knowledge (within 120 days of service?) that but for the mistake in name, it would have been sued. ii. MI R. Relation back is discretionary 1. Statute of Limitations (tested) a. Intentional tort claims R: P has 2 years from discovery of the intentional tort to file a claim. b. Negligence tort claims R: P has 3 years to file from discovery of the claim.

Joinder 1. Claims a. Fed & MI R: A P may join as many claims as it has against a D regardless of whether there is any connection between the joined claims. b. Liberal joinder policy 2. Parties a. Fed & MI R: A P can join as many Ds as he wants if the claims involving the parties derive from the same transaction or occurrence or series of the same. 3. Counterclaims defined: A counterclaim is a claim filed by D against P. a. 2 types in federal court (dif. for MI): i. Permissive defined: A permissive counterclaim is a counterclaim that does not derive from the same transaction/occurrence as Ps claim. B/c it is permissive, D may file the claim as a counterclaim, or may file it later as part of separate suit. ii. Compulsory defined: A compulsory counterclaim is a counterclaim that does derive from the same transaction/occurrence as Ps claim. B/c it is compulsory, it must be filed as a counterclaim and cannot be filed later as part of a separate action (would be dismissed as waived). b. MI All counterclaims are permissive. 4. Impleader (3) R: D may implead (bring into suit), a brand new claim against a brand new 3rd party IF the 3rd party may be liable to D for all or part of Ds same liability to P. a. Indemnity + contribution = impleader 5. Interpleader (4) R: The holder of a common fund may file a lawsuit as a P and interplead (join) as Ds all rival claimants to its common fund (i.e., life insurance proceeds). a. Common fund + rival claimants = interpleader b. Special diversity rule R: Under statutory impleader diversity rules, minimal diversity is enough AND the amount in controversy need only be $500 or more 6. Intervention defined: Intervention is the act of a nonparty in moving to intervene in an ongoing lawsuit. The nonparty must file a motion to intervene. Two types: a. Intervention As of Right R: An intervener has the right to interevene if it has an interest in the ongoing suit which will be adversely affected and is not adequately protected by the parties. b. Permissive Intervention R: The court has discretion to grant permissive intervention if there is a commonality of issues between those in the ongoing suit and those affecting the intervener. 7. Indispensible Parties defined: An indispensible party is a nonparty who can't be joined as a party AND whose absence is so prejudicial to the parties right to a full and fair adjudication that the court must in equity and good conscious dismiss the entire lawsuit for failure to join an indispensible party. a. Nonparties usually cant be joined b/c there is no personal or subject matter jurisdiction

8. Class Actions defined: A class action is an action in which a named P represents a class of commonly situated, absent Ps. a. Federal certification requirements for all class actions (CANT) : i. Commonality there must be common issues of fact or law that pertain to the class. ii. Adequacy the named P and class counsel must fairly and adequately represent the class interest. iii. Numerosity The class must be so numerous that joinder of them all would be impracticable. iv. Typicality The claims of the named P must be typical of the class. b. MI requirements for certification of class actions (CANT SON) i. Commonality, adequacy, numerosity, typicality ii. Superiority the class action device must be a superior method of adjudicating these multiple claims iii. Opt out (the right to) class members must have the right to exclude themselves from the action. iv. Notice class members must receive notice reasonably calculated to apprise them of the action. c. Federal requirements for class actions seeking $ (CANT +) i. Notice ii. Right to opt out iii. Superiority iv. Predominance the common issues must predominate (more important/outweigh) the individual issues. Discovery 1. Gen. R: Discovery is proper if (1) the method of discovery is proper, AND (2) the material sought must be within the proper scope 2. Methods a. Federal (only) Automatic Prompt Disclosure R: In federal court, each side must, w/o awaiting any request from the opposing party, disclose: i. All potential supporting witnesses ii. All potential supporting documents iii. A damages computation iv. Relevant insurance coverage v. All testifying experts 90 days before trial vi. All testifying lay witnesses 30 (60?) days before trial b. Traditional methods i. Depositions the only discovery device that can be used on a nonparty ii. Requests for physical/mental exam the only discovery device that requires a court order which will be granted on good cause shown (rationale exams intrusive)

c. Duty to Supplement (federal and MI) R: each side has an automatic and ongoing duty to update/supplement its prior disclosures within a reasonable time after discovery of new information. 3. Scope R: Material is within the scope of discovery if it is (1) relevant AND (2) not privileged. a. Relevant - means relevant to any part of a claim or defense and need not be admissible at trial b. Not privileged i. Work Product Privilege 1. Defined Work product is any material that has been prepared for litigation and not in the ordinary course of business. 2. 2 kinds of work product: a. An attorneys mental impressions are never discoverable b. All other forms of work product other than attorney mental impressions are generally not discoverable unless the party seeking discovery shows it has a substantial need for the information and it cannot reasonably obtain it elsewhere w/o undue hardship. ii. Attorney Client Privilege (5 elements): (1) attorney, (2) client, (3) communication between A and C, (4) made in confidence, (5) is kept confidential. iii. Doctor Patient Privilege (5 elements): (1) Dr., (2) patient, (3) communication between doc and patient, (4) made in a professional manner, (5) is kept confidential. Trial & Related Motions (7 kinds of motions that all lead to issue of trial by jury (if granted, case is dismissed). 1. Motion for Voluntary Dismissal R: P may voluntarily dismiss his own suit once before the response to the complaint is served, and is free to re-file 2. Motions to Dismiss R: A complaint will be dismissed if assuming the allegations are true, the complaint nonetheless fails to state a plausible claim in federal court, OR fails to state facts which constitute a cause of action in state court. a. Motions to dismiss for improper venue, PJ, service of process, or venue have to be filed in the 1st response to the complaint or they are waived. 3. Motion for Summary Judgment a. Fed. R: Up to 30 days after the close of discovery, the MSJ may be filed and will be granted if there is no genuine issue of material fact for trial. b. MI All dispositive pretrial motions are called motions for summary disposition. 4. Judgment as a Matter of Law (directed verdict) Federal & MI R: After the adversary has rested his case, this motion may be filed and will be granted if there is an insufficient evidentiary basis from which a reasonable jury could find for the nonmoving party. 5. Renewed Motion for a Judgment as a Matter of Law (JNOV): a. Fed. R: A motion for JNOV may be filed within 28 days of a judgment.

b. MI R: A motion for JNOV may be filed within 21 days from judgment if there was an insufficient evidentiary basis from which a reasonable jury could have found for the nonmoving party. 6. New Trial R: The judge has discretion to grant a new trial if (1) errors at the trial affected the parties substantial rights, OR (2) the verdict was merely against the manifest weight of the evidence. 7. Right to Trial by Jury a. Must file a written demand: i. Fed. R: demand must be filed in the complaint (or answer if D) or within 14 days after service. ii. MI R: demand must be filed within 28 days after the answer. b. Constitutional right to trial by jury where the claim seeks primarily monetary damages. Judgments 1. Default Judgments a. Definition A D will suffer a default judgment if it fails to respond to the complaint by an answer or other motion in a timely manner. i. Timely = 21 days if PS, but 28 days if any other method of service b. Motion to Vacate Default Judgment A motion to vacate a default judgment must be filed: i. Fed. R: within a reasonable time after judgment and will be liberally granted. ii. MI R: within 21 days of judgment and will be granted ONLY IF there is an affidavit showing good cause for default on merits. 2. Motion for Relief from Judgment a. Time R: A motion for relief from judgment must be filed within 1 year after the judgment. b. Requirements: i. There was merit to your claim or defense ii. Equity demands relief b/c there was fraud/perjury tainting the judgment iii. New facts have come to light since the judgment that case doubt on it iv. Despite due diligence, D was unable to discover those facts until after the judgment. Finality, Appellate Review, and Settlement 1. Finality Res Judicata and Collateral Estoppel a. Res Judicata R: A claim which has been litigated to final judgment on the merits cannot be relitigated by the parties. b. Collateral Estoppel R: An issue which has been litigated as part of a final judgment on the merits cannot be relitigated by the parties.

i. Offensive collateral estoppel (federal court only): Where an issue in lawsuit #1 was resolved against D, he is barred from relitigating the same issue in lawsuit #2 w/ new P. c. Finality R: Therefore, the parties are barred from relitigating claims or issues which they have already litigated to final judgment on the merits. 2. Appellate Jurisdiction a. Definition Appellate courts are courts of appellate jurisdiction and therefore only have jurisdiction over appeals. b. R: Only final orders may be appealed. A final order is an order that leaves nothing left to be done in the lower courts. i. Exceptions (interlocutory appeal allowed): 1. Partial final order R: A partial final order (an order resolving some claims but not all claims) may be appealed right away if the lowed court finds no reason to delay the appeal. 2. Discretionary Appeal of Interlocutory Order R: The appellate court, in its discretion, may review interlocutory orders if BOTH the trial and appellate court find (1) doubt, (2) controlling issue of law (big time issues), (3) appellate review would materially enhance the entire appeal. 3. Settlement a. Offer of Judgment (Federal and MI) Gen. R: An offer of judgment is a formal settlment offer w/ sanctions attached. If the offeree rejects the offer, the offeree will be sanctioned unless it does better than the offer at trial. i. MI Special R: For all med mal actions and tort claims seeking more than $10K, the parties must submit the case to a case evaluation panel who recommends a settlement amount. If party rejects settlement amount, that party is sanctioned unless it does 10% better than the offer at trial.