ТОП 10:

Jurisdiction in the United States



The primary distinctions between areas of jurisdiction are codified at a national level. As a common law system, jurisdiction is conceptually divided between jurisdiction over the subject matter of a case and jurisdiction over the person of the litigants. (See personal jurisdiction.) Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem.

A court whose subject-matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty or suits where the monetary amount sought is less than a specified sum) is sometimes referred to as a court of special jurisdiction or court of limited jurisdiction.

A court whose subject-matter is not limited to certain types of controversy is referred to as a court of general jurisdiction. In the U.S. States, each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. Federal courts (those operated by the federal government) are courts of limited jurisdiction. Federal jurisdiction is divided into federal question jurisdiction and diversity jurisdiction. The United States District Courts may hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens.

Certain courts, particularly the United States Supreme Court and most state supreme courts, have discretionary jurisdiction, meaning that they can choose which cases to hear from among all the cases presented on appeal. Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject-matter jurisdiction.

It is also necessary to distinguish between original jurisdiction and appellate jurisdiction. A court of original jurisdiction has the power to hear cases as they are first initiated by a plaintiff, while a court of appellate jurisdiction may only hear an action after the court of original jurisdiction (or a lower appellate court) has heard the matter. For example, in the U.S. federal court system, the United States District Courts have original jurisdiction over a number of different matters (as mentioned above), and the United States Courts of Appeals have appellate jurisdiction over matters appealed from the district courts. The U.S. Supreme Court, in turn, has appellate jurisdiction (of a discretionary nature) over the Courts of Appeals, as well as the state supreme courts, by means of writ of certiorari.

However, in a special class of cases, the U.S. Supreme Court has the power to exercise original jurisdiction. Under 28 U.S.C. § 1251, the Supreme court has original and exclusive jurisdiction over controversies between two or more states, and original (but non-exclusive) jurisdiction over cases involving officials of foreign states, controversies between the federal government and a state, actions by a state against the citizens of another state or foreign country.

Pleading

In law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief whereas a demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint and an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-complaint as well as bringing other parties into a case by the process of impleader.

Types of pleading

Common law pleading

Common law pleading was the system of civil procedure used in England, where each cause of action had its own separate procedure. Because the list of causes eligible for consideration was capped early during the development of the English legal system, claims that might be acceptable to the evolving court often did not match up perfectly with any of the established causes. Lawyers had to engage in great ingenuity to shoehorn their clients' claims into the necessary "elements" required to bring an action.

Code pleading

Code pleading was introduced in the 1850s in New York and California. Code pleading unified civil procedure for all types of actions as much as possible, and the required elements of each action are set out in carefully codified statutes.

However, code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint before one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the statute of limitations expired.

Notice pleading

Notice pleading is the dominant form in the United States today. In 1938, the Federal Rules of Civil Procedure were adopted. One goal was to relax the strict rules of code pleading. Code pleading served four purposes: notice, issue narrowing, pleading facts with particularity and eliminating meritless claims. Federal Rule of Civil Procedure (rule 8) eliminated all of those requirements except for the notice requirement (hence we call it notice pleading). The requirements that were eliminated were shifted to discovery (another goal of the FRCP). In notice pleading, plaintiffs are required to state in their initial complaint only a short and plain statement of their cause of action. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase.

Alternative pleading

Alternative pleading is a legal fiction permitting a party argue two mutually exclusive possibilities, for example, submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence.

Motion (legal)

A legal motion is a procedural device in law to bring a limited, contested matter before a court for decision. A motion may be thought of as a request to the judge (or judges) to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion is called the movant.

Service of process

Service of process is the procedure employed to give legal notice to a person (defendant etc.) of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. Usually, notice is furnished by delivering a set of court documents to the person to be served.

Service

Each jurisdiction has rules regarding the means of service of process. Typically, a summons and related documents must be served upon the defendant personally, or in some cases upon another person of suitable age and discretion at the person's abode or place of business or employment. In some cases, service of process may be effected through the mail as in some small claims court procedures. In exceptional cases, other forms of service may be authorized by procedural rules or court order, including service by publication when an individual cannot be located in a particular jurisdiction.

Proper service of process initially establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff. Service of process must be distinguished from service of subsequent documents (such as pleadings and motion papers) between the parties to litigation.

In past times in many countries, people didn't have the right to know that there were legal proceedings against them, and in some cases would only find out when magistrates showed up with the sheriff and seized their property, sometimes throwing them into debtor's prisons until their debts were paid. When the United States was founded, the Constitution said that everyone is entitled to due process of law, therefore the process server is "serving" the servee with their constitutional right to due process of the law.

In ancient times the service of a summons was considered a royal act that had serious consequences. It was a summons to come to the King's Court and to respond to the demand of a loyal subject. In ancient Persia, failure to respond to the King's summons meant a sentence of death. Today the penalty for ignoring a summons is usually a default money judgment that must be subsequently enforced.

Service of process in cases filed in the United States district courts is governed by Rule 4 of the Federal Rules of Civil Procedure. In England and Wales, the rules governing service of documents are contained within Part 6 of the Civil Procedure Rules 1998.

Service on a defendant who resides in a country outside the jurisdiction of the Court must comply with special procedures prescribed under the Hague Service Convention, if the recipient's country is a signatory. Service on defendants in many South American countries and some other countries is effected through the Letter Rogatory process. Where a defendant's whereabouts are unknown, the Court may permit service by publication, usually in a newspaper.

Complaint

In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, etc. Under common law, a complaint is a formal legal document that sets out the basic facts and legal reasons (see: cause of action) that the filing party (the plaintiffs) believes are sufficient to support a claim against another person, persons, entity or entities (the defendants) that entitles the plaintiff(s) to a remedy (either money damages or injunctive relief). For example, the Federal Rules of Civil Procedure that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

In some jurisdictions, certain types of criminal cases may also be commenced by the filing of a complaint, also sometimes called a criminal complaint' or felony complaint. All criminal cases are prosecuted in the name of the governmental authority that promulgates criminal statutes and enforces the police power of the state with the goal of seeking criminal sanctions, such as the State (also sometimes called the People) or Crown (in Commonwealth Realms. In the United States, the complaint is often associated with misdemeanor criminal charges presented by the prosecutor without the grand jury process. In most U.S. jurisdictions, the charging instrument presented to and authorized by a grand jury is referred to as an indictment.

In certain countries, (for example the UK and many countries of the European Community), the making of consumer complaints, particularly regarding the sale of financial services, is governed by statute. The statutory authority may require companies to reply to complaints within set time limits, publish written procedures for handling customer dissatisfaction and provide information about arbitration schemes.

Cause of action

In the law, a cause of action (sometimes called a claim) is a set of facts sufficient to justify a right to sue. The phrase is also used to reference the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment).

To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action.

There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit.

The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a complaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the complaint for failure to state a claim for which relief can be granted.

The defendant to a cause of action must file an "Answer" to the complaint in which the claims can be admitted, denied, or insufficient information to form a response. The answer may also contain counterclaims in which the "Counterclaim Plaintiff" states its own causes of action. Finally, the answer may contain affirmative defenses. Most defenses must be raised at the first possible opportunity either in the answer or by motion or are deemed waived. A few defenses, in particular a court's lack of subject matter jurisdiction, need not be plead and may be raised at any time.

Venue (law)

Venue is the location where a case is heard. In the United States, the venue is either a county (for cases in state court) or a district or division (for cases in federal court). Each case can only be brought in certain venues. For instance, in federal diversity cases, the venue can only be (1) the district where any defendant resides if all defendants reside in the same state, (2) the district where a substantial part of the events giving rise to the claim occurred, or (3) the district in which any defendant is subject to personal jurisdiction if there is no district in which the claim can otherwise be brought.

Venue is a concept distinct from jurisdiction, which focuses on the authority of a court to hear a particular case. However, unlike personal jurisdiction, there is no constitutional requirement for proper venue in order to have a valid judgment.

Demurrer

In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint without admitting or denying the allegations therein. Demurs are usually filed at the beginning of a case. It is filed before the answer and can be characterized as the defendant’s way of saying “so what?” after reading a plaintiff's complaint.

A demurrer existed in criminal law procedure, but today is largely obsolete or abolished.

Remember that a demurrer is NOT a challenge to the ultimate merits of a case or claim. This is because when ruling on a demurrer the law requires the Judge to assume as true facts alleged in the complaint. In ruling on a demurrer the Judge is the professor "grading" the plaintiff-student's paper for correctness. The Judge asks "Assuming what Plaintiff says in the complaint is true [which I am required to assume], is the claim sufficient for it to be further litigated?" When ruling on a demurrer a Judge is NOT permitted to "weigh the facts" nor make a decision as to the merits of a plaintiff's claims. In other words, subject to very few exceptions, the Judge cannot rule on a demurrer based on the Judge's perception of a plaintiff's credibility.

Civil cases

A demurrer is a paper most commonly filed by a defendant in response to a complaint filed by the plaintiff (a plaintiff may demur to a defendant’s answer to a complaint or the defendant's affirmative defenses, but this is uncommon). Sidenote: technically a "demurrer" is NOT a motion. One does not file a motion for demurrer nor move to demur. Despite this, most lawyers erroneously refer to a demurrer as a motion.

In lay terms, if a judge sustains a demurrer, he or she is saying so what to the causes of action or claims alleged in a complaint. In other words, the judge is saying I have read your complaint, but I don't see a valid claim or claims. If the defendant "wins" the demurrer, it will not have to file an answer to the complaint.

In legal terms, a demurrer attacks or responds to the legal sufficiency of the complaint. The demurring defendant asserts that the complaint does not amount to a legally valid claim even if the factual allegations contained in the complaint are accepted as true. Usually, a demurrer attacks a complaint as missing one or more required elements of a claim. For example, a negligence cause of action in a complaint should allege that: 1) the defendant owed a duty to the plaintiff; 2) the defendant breached the duty; 3) the breach caused plaintiff injury; and 4) the plaintiff suffered damage. A defendant could demur by saying that the complaint failed to plead one or more of these essential elements.

Besides policing poorly written or technically deficient complaints, demurrers may move to dismiss the entire complaint or individual claims in which the stated causes of action are not supported or recognized by law. For example, a complaint for breach of a promise to marry could be met by a demurrer because the law in most jurisdictions expressly prohibits such claims on public policy grounds.

Demurrers are decided by the judge rather than the jury. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. In ruling on a demurrer, the judge is required to accept as true all facts written in a complaint. The judge rules on whether the facts stated or alleged in the complaint, if true, constitute a sufficient cause of action warranting the case proceeding to litigation.

If a judge sustains a demurrer, he or she may sustain it "with prejudice" or "without prejudice." With prejudice means the plaintiff CANNOT file a corrected complaint. If the demurrer is granted without prejudice, the plaintiff may correct errors by rewriting the complaint and filing the amended complaint. Demurrers granted with prejudice are rare and reserved for when the judge has determined that the plaintiff cannot cure or fix the complaint by rewriting or amending it.

Because a plaintiff can correct errors by amending the complaint, technical or drafting errors are often dealt with by the demurring lawyer sending a letter to plaintiff counsel. The letter details the errors and typically providing plaintiff counsel the opportunity to file acorrected complaint. Defense counsel often do this rather filing a demurrer because many courts require this informal resolution procedure before a party files a demurrer.

Criminal cases

In criminal cases, a demurrer may be used in some circumstances to challenge the legal sufficiency of the indictment or other similar charging instrument. Traditionally, if the defendant could admit every allegation of the indictment and still be innocent of any crime, then a general demurrer would be sustained and the indictment would be dismissed. A special demurrer refers to an attack on the form, rather than the substance, of the charge: if the defendant correctly identifies some defect "on the face" of the indictment, then the charges are subject to being dismissed, although usually the indictment can be re-drawn and re-presented to the grand jury or other charging authority. Demurrers and special pleas have been abolished in U.S. federal criminal procedure: an attack on the prosecution's case prior to trial is generally made by means of motion to dismiss.

Answer

An answer (derived from and, against, and the same root as swear) was originally a solemn assertion in opposition to some one or something, and thus generally any counter-statement or defence, a reply to a question or objection, or a correct solution of a problem. In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. It may have been preceded by an optional "pre-answer" motion to dismiss or demurrer; if such a motion is unsuccessful, the defendant must file an answer to the complaint or risk an adverse default judgment.

The answer establishes which allegations (cause of action in civil matters) set forth by the complaining party will be contested by the defendant, and states all the defendant's defenses, thus establishing the nature and parameters of the controversy to be decided by the court.

In the case of a criminal case there is usually an arraignment or some other kind of appearance before the court by the defendant. The pleading in the criminal case, which is entered on the record in open court, is either guilty or not guilty. Generally speaking in private, civil cases there is no guilt or innocence. There is only a judgment that grants money damages or some other kind of equitable remedy such as restitution or an injunction. Criminal cases may lead to fines or other punishment, such as imprisonment.

The famous Latin Responsa Prudentium ("answers of the learned ones") were the accumulated views of many successive generations of Roman lawyers, a body of legal opinion which gradually became authoritative.

In music an "answer" (also known as countersubject) is the technical name in counterpoint for the repetition or modification by one part or instrument of a theme proposed by another.

Generally, an answer is a reply to a questions, a solution, retaliation, or response.

Affirmative defense

An affirmative defense is a category of defense used in litigation between private parties in common law jurisdictions, or, more familiarly, a type of defense raised in criminal law by the defendant. Affirmative defenses operate to limit or excuse or avoid a defendant's criminal culpability or civil liability, even if the factual allegations of plaintiff's claim are admitted or proven.

A clear illustration of an affirmative defense is self-defense. In its simplest form, a criminal defendant may be exonerated, if he can demonstrate that he had an honest and reasonable belief that his conduct was necessary to protect himself against another's use of unlawful force.

Among the most controversial affirmative defenses is the insanity defense, whereby a criminal defendant, shown to be insane at the time of their crime, seeks commitment to a mental institution in lieu of imprisonment.

An affirmative defense must be timely pleaded by the defendant in order for the court to consider it, or else it is considered waived by the defendant's failure to assert it. What constitutes timely assertion is often itself the subject of contentious litigation.

Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party making an affirmative defense bears the burden of proof. The burden of proof is typically lower than beyond a reasonable doubt. It can either be proof by clear and convincing evidence or a preponderance of the evidence.

Reply

The reply is a response by plaintiff to defendant's answer. A reply occurs only when defendant has asserted a counterclaim or the court has ordered a reply.

It is important to keep in mind that "plaintiff" in this context may also refer to an impleaded party. So, if a defendant impleads a party, this new party is the third-party defendant and the original defendant is the third-party plaintiff. The third-party plaintiff must file a complaint on the third-party defendant, who then must answer. The court may order a reply to this third-party defendant's answer.

Counterclaim

A Counterclaim is made by the defendant to a civil proceeding, in a main actions against the plaintiff or against the plaintiff and other persons. This claim may be an attempt to offset or reduce the amount/implications of the plaintiff's original claim against the defendant, or it may be a different claim.

For example, Bank sues customer for an unpaid debt, customer counterclaims (sues back) against bank for fraud in procuring the debt. The court will sort out the different claims in one lawsuit (unless the claims are severed).

Counterclaims are either compulsory or permissive. If the counterclaim is permissive, it may be brought, but no rights are waived if it is not. If the counterclaim is mandatory, it must be brought in the current action or it is waived. Under the United States Federal Rules of Civil Procedure, a counterclaim is compulsory if it involves only the parties currently part of the suit, and is from the same transaction that the original suit is based on.

Cross-claim

A cross-claim is a claim brought against a co-party in the same side of a lawsuit. That is, a plaintiff brings a claim against another plaintiff, or a defendant brings a claim against another defendant.

Joinder

Joinder is a legal term which refers to the inclusion of additional counts or additional defendants on an indictment. In English law, charges for any offence may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar nature. A number of defendants may be joined in the same indictment even if no single count applies to all of them, provided that the counts are sufficiently linked. The judge retains the option to order separate trials.

Joinder falls under two categories: joinder of claims, and joinder of parties. Joinder of claims is addressed in U.S. law by the Federal Rules of Civil Procedure No. 18(a). That Rule allows claimants to consolidate all claims that they have against an individual who is already a party to the case. Claimants may bring new claims even if these new claims are not related to the claims already stated. Note that joinder of claims is never compulsory (i.e., joinder is always permissive), and that joinder of claims requires that the court's subject matter jurisdiction requirements regarding the new claims be met for each new claim.

Joinder of parties also falls into two categories: permissive joinder and compulsory joinder. Federal Rule of Civil Procedure No. 20 addresses permissive joinder. Permissive joinder allows multiple plaintiffs to join in an action if each of their claims arise from the same transaction or occurrence, and if there is a common question of law or fact relating to all plaintiffs' claims. Permissive joinder is also appropriate to join multiple defendants, as long as the same considerations as for joining multiple plaintiffs are met. Also, the court must have personal jurisdiction over every defendant joined in the action, as the court has no authority under Rule 20 to exercise supplemental jurisdiction.

 

 

 


 







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