DOCSLIB.ORG

Commentary on the New Maryland Rules of Civil Procedure

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Commentary on the New Maryland Rules of Civil Procedure Maryland Law Review Volume 43 | Issue 4 Article 4 Commentary on the New Maryland Rules of Civil Procedure Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Civil Procedure Commons Recommended Citation Commentary on the New Maryland Rules of Civil Procedure, 43 Md. L. Rev. 669 (1984) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol43/iss4/4 This Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. COMMENTARY ON THE NEW MARYLAND RULES OF CIVIL PROCEDURE TABLE OF CONTENTS Page TITLE 1. GENERAL PROVISIONS Chapter 100. APPLICABILITY AND CITATION RULE 1-101. A pplicability .................................. 673 1-102. Circuit and Local Rules ....................... 674 1-103. M ethod of Citation ........................... 674 Chapter 200. CONSTRUCTION, INTERPRETATION AND DEFINITIONS RULE 1-201. Rules of Construction ......................... 675 1-202. D efinitions .................................... 677 1-203. T im e .......................................... 679 1-204. Motion to Shorten or Extend Time R equirem ents ................................. 680 Chapter 300. GENERAL PROVISIONS RULE 1-301. Form of Court Papers ......................... 683 1-302. Form s ......................................... 685 1-303. Form of O ath ................................. 685 1-304. Form of Affidavit ............................. 685 1-311. Signing of Pleadings and Other Papers ........ 686 1-312. Requirements of Signing Attorney ............. 688 1-313. Certification by Signing Attorney With Out-of- State O ffi ce ................................... 690 1-321. Service of Pleadings and Papers Other Than O riginal Pleadings ............................ 690 1-322. Filing of Pleadings and Other Papers .......... 692 1-323. Proof of Service ............................... 692 1-324. Notice of O rders .............................. 693 1-325. Prepayment of Filing Fees - Waiver .......... 693 1-331. Attorney May Act for Party ................... 694 1-341. Bad Faith - Unjustified Proceedings ......... 694 1-351. Order Upon Ex Parte Application Prohibited - Exceptions ................................. 695 MARYLAND LAW REVIEW [VOL. 43:669 Chapter 400. BOND RULE 1-401. Applicability .................................. 696 1-402. Filing and Approval ........................... 696 1-403. Relief to Surety and Interested Persons ........ 697 1-404. Proceeding Against Surety ..................... 698 1-405. Judgment on Bond ............................ 698 1-406. Bond Premiums as Costs ...................... 699 TITLE 2. CIVIL PROCEDURE - CIRCUIT COURT Chapter 100. COMMENCEMENT OF ACTION AND PROCESS RULE 2-101. Commencement of Action ..................... 699 2-111. Process - Requirements Preliminary to Sum m ons ..................................... 700 2-112. Process - Issuance of Summons ............... 701 2-113. Process - Duration, Dormancy and Renewal of Sum m ons ................................... 702 2-114. Process - Content ............................ 703 2-115. Attachment Before Judgment ................. 704 2-121. Process - Service - In Personam ............ 716 2-122. Process - Service - In Rem or Quasi in Rem 718 2-123. Process - By Whom Served .................. 719 2-124. Process - Persons to be Served ............... 720 2-125. Process - Service on Sundays and Holidays .. 723 2-126. Process - Return ............................. 724 2-131. Appearance ................................... 725 2-132. Striking of Attorney's Appearance ............. 726 Chapter 200. PARTIES RULE 2-201. Real Party in Interest ......................... 727 2-202. C apacity ...................................... 728 2-211. Required Joinder of Parties ................... 730 2-212. Permissive Joinder of Parties .................. 732 2-213. Misjoinder and Nonjoinder of Parties .......... 733 2-214. Intervention ................................... 733 2-221. Interpleader ................................... 734 2-231. Class Actions .................................. 735 2-241. Substitution of Parties ......................... 740 1984] MARtLAND RULES Chapter 300. PLEADINGS AND MOTIONS RULE 2-301. Form of Action .................... ............ 742 2-302. Pleadings Allowed ................. ............ 743 2-303. Form of Pleadings ................. ............ 744 2-304. Pleading Special Matters .......... ............ 744 2-305. Claims for Relief .................. ............ 746 2-311. M otions ....................................... 746 2-321. Time for Filing Answer ....................... 749 2-322. Preliminary M otions .......................... 750 2-323. A nsw er ........................................ 755 2-324. Preservation of Certain Defenses ............... 760 2-325. Jury T rial ..................................... 760 2-326. Transfers From District Court on Demand for Jury T rial ..................................... 762 2-327. Transfer of Action ............................. 763 2-331. Counterclaim and Cross-claim ................. 764 2-332. Third Party Practice .......................... 766 2-341. Amendment of Pleadings ...................... 766 2-342. Amendment of Other Papers .................. 768 Chapter 400. DISCOVERY RULE 2-401. General Provisions Governing Discovery ....... 769 2-402. Scope of Discovery ............................ 770 2-403. Protective O rders .............................. 774 2-404. Perpetuation of Evidence ...................... 775 2-411. Deposition - Right to Take .................. 778 2-412. Deposition - Notice .......................... 778 2-413. Deposition - Place ........................... 779 2-414. Deposition - Officer Before Whom Taken .... 779 2-415. Deposition - Procedure ...................... 780 2-416. Deposition - Videotape and Audiotape ....... 782 2-417. Deposition - Written Questions .............. 782 2-418. Deposition - By Telephone ................... 782 2-419. Deposition - Use ............................. 783 2-421. Interrogatories to Parties ...................... 784 2-422. Discovery of Documents and Property ......... 785 2-423. Mental or Physical Examination of Persons .... 785 2-424. Admission of Facts and Genuineness of D ocum ents .................................... 785 2-431. Certificate Requirement ....................... 787 2-432. Motions Upon Failure to Provide Discovery ... 788 MARYLAND LAW REVIEW [VOL. 43:669 2-433. Sanctions ...................................... 789 2-434. Expenses for Failure to Pursue Deposition ..... 789 Chapter 500. TRIAL RULE 2-501. Motion for Summary Judgment ............... 790 2-502. Separation of Questions for Decision by Court. 791 2-503. Consolidation; Separate Trials ................. 792 2-504. Pretrial Conference ............................ 793 2-505. R em oval ...................................... 795 2-506. Voluntary Dismissal ........................... 795 2-507. Dismissal for Lack of Jurisdiction or Prosecution .................................... 796 2-508. Continuance .................................. 796 2-509. Jury Trial - Special Costs in First, Second and Fourth Judicial Circuits .................. 798 2-510. Subpoenas .................................... 798 2-511. Trial by Jury ................................. 799 2-512. Jury Selection ................................. 801 2-513. Exclusion of W itnesses ......................... 802 2-514. When Court May Require Production of E vidence ...................................... 803 2-515. V iew .......................................... 804 2-516. Exhibits ....................................... 805 2-517. Method of Making Objections ................. 805 2-519. Motion for Judgment ......................... 806 2-520. Instructions to the Jury ....................... 807 2-521. jury - Review of Evidence - Com m unications .............................. 808 2-522. Court Decision - Jury Verdict ............... 809 2-532. Motion for Judgment Notwithstanding the V erdict ........................................ 8 10 2-533. M otion for New Trial ......................... 811 2-534. Motion to Alter or Amend a Judgment - C ourt Trial ................................... 811 2-535. Revisory Power ............................... 813 2-536. Disability of Judge ............................ 814 2-541. M asters ....................................... 814 2-542. Exam iners ..................................... 814 2-543. A uditors ...................................... 815 2-551. In Banc Review ............................... 817 Chapter 600. JUDGMENT RULE 2-601. Entry of Judgment ............................ 819 1984] MARYLAND RULES 2-602. Judgment - Multiple Claims ................. 820 2-603. C osts .......................................... 822 2-604. Interest ........................................ 824 2-611. Confessed Judgment ........................... 824 2-612. Consent Judgment ............................ 828 2-613. Default Judgment ............................. 829 2-614. Judgment of Contribution or Recovery Over .. 833 2-615. Judgment on Claim and Counterclaim ........ 833 2-621. Lien of Judgment ............................. 833 2-622. Transmittal to Another Court ................. 834 2-623. Recording of Judgment of Another Court ..... 835 2-624. Assignment of Judgment
Load more

Recommended publications
  • INDIANA LAW REVIEW [Vol
    Federal Court Jurisdiction in Civil Forfeitures of Personal Property Pursuant to the Comprehensive Drug Abuse Prevention and Control Act Karen L. Fisher* Introduction Civil forfeiture under the Comprehensive Drug Abuse Prevention and Control Act 1 has become surrounded by much controversy, since the Reagan Administration's introduction in March 1988 of a zero- tolerance policy in the war on drugs. Since then, federal and state drug enforcement activities have included the increasing use of civil forfeiture as a means of deterring illegal drug trafficking, punishing drug dealers and users, and providing additional revenues for the war on drugs. Under the Drug Control Act, a person may forfeit any real or personal property used to facilitate the manufacture, transportation, sale, or possession of illegal drugs or property acquired with proceeds connected with drug trade. 2 This Note will focus on federal civil procedure in cases involving forfeiture of personal property pursuant to the Drug Control Act. The issue considered is whether execution of a civil forfeiture judgment should extinguish federal courts' jurisdiction, thereby precluding a claimant from seeking relief from an adverse judgment. Personal property, especially intangibles, is of particular interest because the situs, or jurisdictional location, of such property is movable and often difficult to ascertain. Civil forfeiture cases under the Drug Control Act traditionally have followed in rem admiralty procedures. Under admiralty rules, the court's jurisdiction continues only so long as it maintains physical control over the property. Hence, the court loses jurisdiction once it executes judg- ment. However, in recent years, several circuits instead have asserted in personam jurisdiction over the government as plaintiff, thereby preserving a losing claimant's right of appeal after execution of the judgment.
    [Show full text]
  • United States District Court Eastern District of Kentucky Lexington Division
    Case: 5:05-cv-00137-JBC-JBT Doc #: 13 Filed: 10/11/05 Page: 1 of 5 - Page ID#: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON DIVISION CIVIL ACTION NO. 05-137-JBC EAST KENTUCKY POWER COOPERATIVE, INC., PLAINTIFF, V. MEMORANDUM OPINION AND ORDER GREENWICH INSURANCE COMPANY, DEFENDANT. * * * * * * * * * * * This matter is before the court on the motion of the defendant, Greenwich Insurance Company (“Greenwich”), for leave to file a third party complaint (DE 4), and on the motion of Lexington Coal Company (“LCC”) to intervene and transfer to Bankruptcy Court (DE 7, 8). The court construes the plaintiff’s responses as motions to remand (DE 5, 9). The court, having reviewed the record and being otherwise sufficiently advised, will grant Greenwich’s motion, will reserve ruling on LCC’s motion, and will deny the plaintiff’s motion. Background and procedural history Plaintiff, East Kentucky Power Cooperative (“EKPC”), is a resident of the Commonwealth of Kentucky. It filed a complaint in Clark County Circuit Court against Greenwich, a foreign company, alleging breach of contract and breach of a covenant of good faith and fair dealing. Greenwich removed the case to this court invoking diversity jurisdiction and now seeks to implead LCC and interplead LCC and EKPC. EKPC objects to neither procedural device. However, it is concerned that the impleader of LCC, also a Kentucky resident, will destroy this court’s diversity Case: 5:05-cv-00137-JBC-JBT Doc #: 13 Filed: 10/11/05 Page: 2 of 5 - Page ID#: <pageID> jurisdiction. Analysis Greenwich’s motion for leave to file a third-party complaint Impleader is proper under Rule 14 where a third party may be liable to a defendant for all or part of a plaintiff’s claim.
    [Show full text]
  • Winning Your Case Before You Go to Trial1
    Winning Your Case Before You Go To Trial Chapter 16 Winning Your Case Before You Go To Trial Michelle May O’Neil O’Neil Anderson Two Lincoln Centre 5420 LBJ Freeway, Suite 500 Dallas, Texas 75240 (972) 852-8000 Website: www.oneilanderson.com Blog: www.dallastxdivorce.com Email: [email protected] Hon. William Harris 233rd Judicial District Court Family Law Center, 5th Floor 200 East Weatherford Street Fort Worth, Texas 76196 (817) 224-2686 Co-authors: Nathan Anderson Ashley Bowline Russell O’Neil Anderson O’Neil Anderson Two Lincoln Centre Two Lincoln Centre 5420 LBJ Freeway, Suite 500 5420 LBJ Freeway, Suite 500 Dallas, Texas 75240 Dallas, Texas 75240 (972) 852-8000 (972) 852-8000 Website: www.oneilanderson.com Website: www.oneilanderson.com Blog: www.dallastxdivorce.com Blog: www.dallastxdivorce.com Email: [email protected] Email: [email protected] State Bar of Texas Advanced Family Law Course 2009 Honoring the Past… Embracing the Future Chapter 16 Winning Your Case Before You Go To Trial Chapter 16 Michelle May O’Neil Founding Partner O’Neil Anderson Two Lincoln Centre 5420 LBJ Freeway, Suite 500 Dallas, Texas 75240 (972) 852-8000 Website: www.oneilanderson.com Blog: www.dallastxdivorce.com Email: [email protected] Ms. O’Neil founded the firm with her friend and partner Nathan T. Anderson based on their desire to provide clients with high- quality representation in a personalized atmosphere. She has over 18 years of experience representing men, women, and children related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms.
    [Show full text]
  • Supreme Court Directs State Court to Decide Whether Indian Tribe Can Invoke Sovereign Immunity in Property Dispute
    Legal Sidebari Supreme Court Directs State Court to Decide Whether Indian Tribe Can Invoke Sovereign Immunity in Property Dispute Hillel R. Smith Legislative Attorney July 16, 2018 Indian tribes possess “inherent sovereign authority,” which means, among other things, that they cannot be subject to lawsuits unless the tribe waives or Congress expressly abrogates such immunity. Recently, the Supreme Court in Upper Skagit Indian Tribe v. Lundgren ruled that a Washington state court erroneously rejected an Indian tribe’s claim that sovereign immunity foreclosed a lawsuit involving a property dispute between two landowners and the tribe. Citing the Supreme Court’s 1992 decision in County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, the state court had reasoned that an Indian tribe’s claim of sovereign immunity did not bar courts from exercising jurisdiction to settle disputes over real property. In reversing the state court’s decision, the Supreme Court held that the state court’s reliance on Yakima was misplaced because that case did not address the scope of tribal sovereign immunity, but only concerned the question of whether a particular federal law permitted state taxation of certain land within an Indian reservation. The Supreme Court directed the lower court to address the plaintiffs’ new contention that an Indian tribe cannot assert sovereign immunity in an action relating to immovable property located in in the territory of another sovereign, namely, in another state. While the Supreme Court’s decision clarifies its ruling in Yakima, the Court’s decision leaves unresolved the underlying issue of whether an Indian tribe may invoke sovereign immunity in cases involving disputes over real property.
    [Show full text]
  • Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation John E
    Journal of Air Law and Commerce Volume 38 | Issue 3 Article 4 1972 Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation John E. Kennedy Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation John E. Kennedy, Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation, 38 J. Air L. & Com. 325 (1972) https://scholar.smu.edu/jalc/vol38/iss3/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. COUNTERCLAIMS, CROSS-CLAIMS AND IMPLEADER IN FEDERAL AVIATION LITIGATION JOHN E. KENNEDY* I. THE GENERAL PROBLEM: MULTIPLE POTENTIAL PLAINTIFFS AND DEFENDANTS W HEN airplanes crash, difficult procedural problems often arise from the numbers of potential parties and the com- plexity of the applicable substantive law. Since under that law, re- covery can be granted to large numbers of plaintiffs, and liability can be distributed to a variety of defendants, the procedural rights to counterclaim, cross-claim and implead third-parties have become important aspects of federal aviation litigation. When death results the most obvious parties plaintiff are those injured by the death of the decedent, i.e., the spouses, children, heirs and creditors. Whether they must sue through an estate, or special administrator or directly by themselves will ordinarily be determined by the particular state wrongful death statute under which the action is brought, and the capacity law of the forum.' In addition, the status of the decedent will also have bearing on the parties and the form of action.
    [Show full text]
  • United States Court of Appeals for the Fourth Circuit
    PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PORSCHE CARS NORTH AMERICA, INCORPORATED; DR. ING. H.C.F. PORSCHE AG, Plaintiffs-Appellants, v. PORSCHE.NET; PORSCHECLUB.NET; PORSCHELOANS.COM; PORSCHELEASE.COM; PORSCHELOAN.COM, Defendants-Appellees, and PORSCH.COM, an internet domain name and the following internet No. 01-2028 domain names: PORSCHECAR.COM; PORSCHAGIRLS.COM; 928 PORSCHE.COM; ACCESSORIES4PORSCHE.COM; ALLPORSCHE.COM; BEVERLYHILLSPORSCHE.COM; BOXSTER.COM; BOXSTER.NET; BOXSTERS.COM; BUYAPORSCHE.COM; CALPORSCHE.COM; E-PORSCHE.COM; EVERYTHINGPORSCHE.COM; FORMULAPORSCHE.COM; IANSPORSCHE.COM; IDOPORSCHE.COM; LAPORSCHE.COM; LYNCHPORSCHE.COM; MYPORSCHE.COM; NEWPORSCHE.COM; PARTS4PORSCHE.COM; 2 PORSCHE CARS v. PORSCHE.NET PO[ZERO]RSCHE.COM; PASSION-PORSCHE.COM; PORSCHE.ORG; PORSCHE-911.COM; PORSCHE-911.NET; PORSCHE-944.COM; PORSCHE-ACCESSORIES.COM; PORSCHE-AUTOS.COM; PORSCHE-BOOKS.COM; PORSCHE-CARRERA.COM; PORSCHE-CARS.COM; PORSCHE-CITY.COM; PORSCHE-CLASSIC.COM; PORSCHE-EXCHANGE.COM; PORSCHE-LEASING.COM; PORSCHE-LYNN.COM; PORSCHE-MODELLCLUB.COM; PORSCHE-MUNICH.COM; PORSCHE-NET.COM; PORSCHE-NL.COM; PORSCHE-ONLINE.COM; PORSCHE-RS.COM; PORSCHE-SALES.COM; PORSCHE-SERVICE.COM; PORSCHE-SUPERCUP.COM; PORSCHE-WEB.COM; PORSCHE356.COM; PORSCHE4ME.COM; PORSCHE4SALE.COM; PORSCHE911.COM; PORSCHE911.NET; PORSCHE911.ORG; PORSCHE911PARTS.COM; PORSCHE914.COM; PORSCHE924.COM; PORSCHE944.COM; PORSCHE993.COM; PORSCHE996.COM; PORSCHEAG.COM; PORSCHEAUDIPARTS.COM; PORSCHE CARS v. PORSCHE.NET 3 PORSCHEBOOKS.COM; PORSCHEBOXTER.COM;
    [Show full text]
  • United States District Court
    Case 1:18-cv-00231-BLW Document 46 Filed 12/03/18 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO WILLIAM WHITT, Case No. 1:18-cv-00231-BLW Plaintiff, MEMORANDUM DECISION AND ORDER v. PAPA MURPHY’S INTERNATIONAL, LLC, a Foreign corporation d/b/a PAPA MURPHY’S TAKE N BAKE, Defendant. _________________________________ PAPA MURPHY’S INTERNATIONAL, LLC, a Foreign corporation d/b/a PAPA MURPHY’S TAKE N BAKE, Third Party Plaintiff, v. C.H. ROBINSON COMPANY, a Delaware Corporation; GRASMICK PRODUCE CO. INC., an Idaho Corporation; and MOES 1 through 30, inclusive,, Third Party Defendants. MEMORANDUM DECISION AND ORDER - 1 Case 1:18-cv-00231-BLW Document 46 Filed 12/03/18 Page 2 of 3 The Court has before it Third Party Defendant Grasmick Produce Co., Inc’s Motion for Leave to File Third Party Complaint (Dkt. 44). No party has responded to the motion, and the deadline for responding has passed. Rule 14 permits third-party complaints. Fed.R.Civ.P. 14(a). The decision whether to implead a third-party defendant is left to the sound discretion of the trial court. Southwest Administrators, Inc. v. Rozay's Transfer, 791 F.2d 769, 777 (9th Cir.1986). The purpose of impleader is to promote judicial efficiency by avoiding separate actions against third parties who may be liable to defendant for part or all of plaintiff's original claim. 6 Fed. Prac. & Proc. Civ § 1442 (3d ed.). Impleader also helps avoid inconsistent outcomes for claims based on the same or similar evidence.
    [Show full text]
  • Responding to a Complaint: Washington, Practical Law State Q&A W-000-4121
    Responding to a Complaint: Washington, Practical Law State Q&A w-000-4121 Responding to a Complaint: Washington by Barbara J. Duffy, Lane Powell PC, with Practical Law Litigation Law stated as of 10 Jun 2019 • United States, Washington A Q&A guide to responding to a complaint in a trial court of general jurisdiction in Washington. This Q&A addresses the time to respond, extending the time to respond, pre-answer motions, answers, replies to the answer, counterclaims, crossclaims, third-party claims (also known as impleader), and defensive interpleader. Answers to questions can be compared across a number of jurisdictions (see Responding to a Complaint: State Q&A Tool). Overview of Responding to a State Complaint 1. When must a defendant respond to the complaint? In Washington, a defendant must respond to a complaint within 20 days after being served with the summons and complaint (Wash. Super. Ct. Civ. R. 4(a)(2) and 12(a)(1)). If process is served by publication, a defendant must respond within 60 days from the date of first publication of the summons (RCW 4.28.110 and Wash. Super. Ct. Civ. R. 12(a)(2)). If a plaintiff serves a defendant outside of Washington, the defendant has 60 days to respond to the complaint (RCW 4.28.180 and Wash. Super. Ct. Civ. R. 12(a)(3)). 2. How, if at all, can one obtain an extension of time to respond (for example, by stipulation, so-ordered stipulation, ex parte motion, motion on notice)? Counsel should check the local court's website for additional information regarding extending time to respond to a complaint.
    [Show full text]
  • Parallel Litigation
    Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 1-1999 Parallel Litigation James P. George Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation James P. George, Parallel Litigation, 51 Baylor L. Rev. 769 (1999). Available at: https://scholarship.law.tamu.edu/facscholar/427 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. PARALLEL LITIGATION' James P. George- TABLE OF CONTENTS I. PARALLEL LAWSUITS--AN OVERVIEW ............................................... 773 A. ParallelLitigation Defined and Distinguished............................ 773 B. The Milieu--FourDistinct Settings for ParallelLitigation .......... 776 C. The Remedies: Five Responses to ParallelLitigation ................. 777 1. Do Nothing ............................................................................. 777 2. Transfer and Consolidation .................................................... 777 3. Dismissals and Stays (and Abatements) ............................... 778 4. Antisuit Injunctions ................................................................ 780 D. The Common Doctrines: Six Themes in ParallelLitigation ....... 782 1. The First-Filed Case ..............................................................
    [Show full text]
  • Question 1. on What Basis, If Any Would a Federal District Court Have Subject Matter Jurisdiction Over the Lawsuit by Plaintiff Against Defendant
    STUDENT ANSWER 1: Question 1. On what basis, if any would a federal district court have subject matter jurisdiction over the lawsuit by plaintiff against defendant. ISSUE 1: Whether or not the federal court has subject matter jurisdiction over plaintiff’s complaint. The federal courts are courts of limited jurisdiction and have subject matter jurisdiction over federal question causes of action and diversity of jurisdiction causes of action. A federal question claim arises when the cause of action arises under an act of Congress, the US Constitution or a US Treaty. A diversity claim is a state based claim between citizens of different states where the damages exceed 75,000. In addition the federal court has the discretion to exercise supplemental jurisdiction. Supplemental jurisdiction allows a federal court to hear a state claim that is related to a valid pending claim in the federal court even though independently that claim could not enter the federal court house so long as the state claim against a D derives from a common nucleus of operative facts. To determine whether or not a court has jurisdiction over a federal question claim, the court relies on the well pleaded complaint rule. Under the WELL PLEADED COMAPLAINT RULE, federal courts look exclusively to the plaintiff’s complaint and will not consider that a defendant may raise a federal statute as a defense or that the D will assert a related counterclaim involving federal issues. To determine whether or not jurisdiction exists under a diversity of jurisdiction claim, both plaintiff and defendant must be completely diverse and the cause of action must exceed 75,000.00.
    [Show full text]
  • Application of Compulsory Joinder, Intervention, Impleader, and Attachment to the Letter of Credit Litigation
    Fordham Law Review Volume 52 Issue 5 Article 10 1984 Application of Compulsory Joinder, Intervention, Impleader, and Attachment to the Letter of Credit Litigation David C. Howard Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation David C. Howard, Application of Compulsory Joinder, Intervention, Impleader, and Attachment to the Letter of Credit Litigation, 52 Fordham L. Rev. 957 (1984). Available at: https://ir.lawnet.fordham.edu/flr/vol52/iss5/10 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE APPLICATION OF COMPULSORY JOINDER, INTERVENTION, IMPLEADER AND ATTACHMENT TO LETTER OF CREDIT LITIGATION INTRODUCTION A letter of credit' is a device by which a bank or other issuer,2 at the request of its customer, engages 3 that it will honor drafts or other demands for payment if presented in compliance with specified condi- tions.4 The essential function of the letter of credit is to substitute the 1. For a general definition of a letter of credit, see Bank of Newport v. First Nat'l Bank & Trust Co., 34 U.C.C. Rep. Serv. (Callaghan) 650, 655 (8th Cir. 1982); East Girard Say. Ass'n v. Citizens Nat'l Bank & Trust Co., 593 F.2d 598, 601-02 (5th Cir. 1979) (quoting 2 Tex.
    [Show full text]
  • A Comparative Analysis of Procedural Third-Party Practice Minn
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1958 A Comparative Analysis of Procedural Third-Party Practice Minn. L. Rev. Editorial Board Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Editorial Board, Minn. L. Rev., "A Comparative Analysis of Procedural Third-Party Practice" (1958). Minnesota Law Review. 2751. https://scholarship.law.umn.edu/mlr/2751 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Notes A Comparative Analysis of Procedural Third-Party Practice This Note compares the three basic types of third-party prac- tice found in American jurisdictions-first,the system requir- ing court permission before a third party can be impleaded; second, the system permitting impleader as a matter of right; and third, the hybrid system permitting impleader as of right before a set time, but requiring court permission in order to implead a third party after that time. The author concludes that the hybrid system best satisfies the standards of pro- cedural efficiency and fairness to all parties. TIRD-party practice, commonly referred to as "implead- er," is a procedural device by which the defendant in a lawsuit may assert a claim against a third person who is or may be liable to him for all or part of the
    [Show full text]