Term
| District Court Jurisdiction |
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Definition
1.) Claims up to $100k
2.)No jurisdiction over equitable relief or cases involving title to real property.
3.) can grant some equitable relief by statute (return prop or evection) |
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Term
| Small Claims Jurisdiction |
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Definition
1.) Cannot exceed $10k
2.) no SOA as def
3.) cannot preempt judge
4.) evidence rules more relaxed
5.) prevailing parties entitled to costs and attorneys fees |
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Term
Service of Process:
Sufficiency generally |
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Definition
1.) Service on a competent adult
2.) personally (P.O or P.S) or by mail
A.) personal deliver, leaving copy at
house or usual abode w/ person of
suitable age & discretion,
residing there |
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Term
| Summons and Affidavit of Service |
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Definition
| 1.) Failure to include a summons with the complaint defeats PJ (Killa) |
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Term
| Service on State Civil Rule 4(d)7&8 |
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Definition
In any claim against the state, summons must be served on
1.) The named agency
2.) the Attorney General's office in Juneau
3.) if in Anch or FBKs, with AG in those districts |
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Term
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Definition
| Alaskas Long Arm Statute Lists numerous bases for jurisdiction and has been constructed to assert jurisdiction to the maximum extent by the due process clause of the U.S. Constitution |
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Term
| Venue Rule 3(f) & 12(b)(3) |
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Definition
Improper venue must be raised in the first responsive pleading or it is waived
1.)Venue is proper in a J where D can be served or where claim arose.
2.) If D cannot be served in state, venue is proper in any district
3.) If wrong District, court MUST transfer or dismiss
4.) If proper venue, MAY transfer if
a.) impartial trial cannot be held
b.) Judge has been DQ'd
c.) Convenience of witness to ends
of justice serviced
d.) D would be put to unnecessary
expense |
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Term
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Definition
1.)Every pleading must be signed by Attorney of Record
2.) Signature certifies pleading is well grounded in fact and warranted by existing law or a GF argument
3.) not interposed for any improper purpose to harass or delay, or expense
4.)Objective standard and not necessary to show willfulness or subjective bad faith
Rule 95 can impose $50k fine for violation |
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Term
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Definition
1.) D must serve answer within 20 days of service of summons and complaint
2.) Any party must cross-claim or counterclaim within 20 days
3.) State has 40 days
4.) MTD alters the answer rules
a.) if court denies-10 days
b.) if court grants-no action left |
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Term
| Motion to Dismiss 12(b)(6) |
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Definition
| A party may file a motion to dismiss for failure to state a claim upon which relief can be granted. |
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Term
| Motion on the Pleadings 12(c) |
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Definition
| After pleadings are closed, within such time as not to delay the trial, a party may move for judgment on the pleadings (court only considers pleadings-avoids costly discovery) |
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Term
| Motion for Summary Judgment |
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Definition
Summary Judgment will be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Burden on moving party
Court will draw inferences in favor of non-moving party.
Once moving party establishes by admiss evidence, non-moving party must clearly and specifically demonstrate that it can produce admiss ev disputing moving party evidence. |
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Term
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Definition
Allows court to deny the motion or grant a continuance when it appears that the nonmoving party cannot present by affidavit facts essential to justify opposition. (liberal interpretation)
Court must consider ALL evidence before it, not only evidence raised by parties in their briefs. |
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Term
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Definition
The answer must contain ALL affirmative defenses or the defense is waived. SOL is most common affirmative defense.
Some may be waived & amended in further pleading |
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Term
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Definition
SOL is 2 years for Tort actions
3 years for contract actions commenced after 8/7/97.
AK applies "discovery rule" in ALL actions
Statutory period begins when the P discovers, or reasonably should have discovered the existence of All the elements of the cause of action |
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Term
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Definition
Suit must be filed within 10 years of the last act alleged to have caused the injury.
Lots of exceptions
intentional or negligent acts, fraud intentional concealment.
AK SC anybody injured as a minor has until 20th Bday. |
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Term
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Definition
counterclaims are either Mandatory or permissive.
Mandatory 1.) arises out of same transaction or occurence, 2.) does not require the presence of 3rd party over whom court cannot acquire jurisdiction. Must be brought or will be lost by operation of issue or claim preclusion
Permissive-is any other claim against Plaintiff |
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Term
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Definition
Four Procedural Req's (CANT)
1.) Commonality: There are Q's of law or fact that are common to class
2.) Adequacy: representatives will fairly and adequately protect the interests of the class (no COI within class)
Numerosity: Class is so numerous that joinder of all members is impracticable
Typicality: Claims/defenses of the Reps are typical of class. |
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Term
| Three types of Class Actions |
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Definition
(b)1 Protection of separate actions would
a.)create incompatible standards of conduct for opposing party, or
b.) damage or potentially impair the interest of other class members; or
(b)2 injunctive or declaratory relief is appropriate; or
(b)3 Common Q's of law of fact predominate andclass action is superior to alternatives.
For (b)3 Court should consider
A.) the interest of individually controlling the separate actions
B.) any litigation already commenced
C.) the benefit of concentrating the litigation in the forum
D.) management of the class |
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Term
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Definition
Alaskans may have standing to sue based on 1.) and identifiable interest that is adversely affected by D's conduct (Interest plus injury standing)
2.) Their status as a taxpayer or citizen challenging governmental action (citizen-taxpayer standing)
NOTE: Standing is not a jurisdictional requirement in Alaska (diff from fed)
KEY: Genuine controversy between parties |
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Term
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Definition
Under intervention of right, an applicant must be allowed to join if
1.) has a direct substantial and sufficiently protectable interest
2.) continuing lawsuit without the applicant may impair the applicant's ability to protect his interest
3.) the applicant's interst isnot adequately represented by an existing party
Under permissive joiner, an applicant may be allowed to join if there is any Q of fact or law in common |
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Term
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Definition
A D may add any person whose fault may have been a cause of the P's damage (Equitable Apportionment 14(c)) or who may have an express or implied indemnity obligation for the plaintiff's damage (indemnity 14(a))
D may add the third-party D as a matter of right within 10 days after serving original answer, (after-only with leave of court for a.) timeliness, b.) possible prejudice, c.) likelihood of delay, d.) complication of the issues, e.) merit of 3rd party complaint, f.) additional expense to the parties. |
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Term
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Definition
| Party may amend a pleading any time before the responsive pleading is served and after that on leave of court -Such leave shall be freely given when justice requires |
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Term
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Definition
An amendment that changes a legal claim or defense will relate back to the original pleading if it arose out of the same transaction or occurrence.
An amendment that adds a new party must
1.) rise out of same transaction or occurrence and
2.) within the relevant statutory period the new party must have
A.) received such notice of action that party will not be prejudiced in maintaining a defense on the merits AND
B.) Know or should have known, but for a mistake concerning identity of the proper party, the action would have been brought against new party
AK SC insisted there must be a TRUE MISTAKE OF IDENTITY, not simply neglecting to name other related parties (First American Title). |
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Term
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Definition
Parties may obtain discovery regarding any relevant unprivileged matter Rule 26(b)(1).
Inadmissible information is discoverable if it is "Reasonably calculated to lead to the discovery of admissible information"
Normally, discovery may only be required of parties to the litigation and information from nonparties must be obtained by Subpoena Duces Tecum (a court form) |
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Term
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Definition
| Ten interrogatories may be served before planning meeting required by 26(f) |
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Term
Discovery
Privilege: Waiver |
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Definition
Filing of Personal Injury action waives physician-patient and psychotherapist-patient privilege as to ALL information relevant to matters that the P has put in issue.
Party witholding prvilege or work product must
1.) make the claim expressly and
2.) describe the items withheld in a manner sufficient for other to assess the validity of the claim Rule 26(b)(5)
Failure to make a timely and proper objection to a discovery request may be a waiver of the right to object. |
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Term
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Definition
Work product is
1.) a document or other tangible thing,
2.) prepared in anticipation of litigation or trial
3.) prepared by or for the opposing party's attorney or representative.
Materials in an insurers file are presumed to be compiled in the ordinary course of business and OUTSIDE of the work product rule absent showing materials were prepared at the request or under supervision of the insured's attorney |
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Term
Discovery
Physical and Mental Exams |
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Definition
Court may order a party whose M or P condition is in controversy to submit a P or M exam upon showing of good cause.
Rule requires filing of a motion
Party has right to have attorney present and record exam (to protect attorney as witness) Rule 35 controversy and good cause |
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Term
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Definition
Rule 26 requires a party to automatically disclose to the opponent the name of the expert and a report prepared by the expert containing
1.) a complete statement of ALL opinions
2.) basis for each a.) data or b.) other info considered in forming expert's opinion, c.) exhibits to be used, d.) qualifcations, e.) publications (last 10 years), f.) compensation being paid, g.) cases testified (last 4 years)
AK uses Daubert for experts and Coon for scientific expert testimony |
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Term
Discovery
Motion to Compel
Sanctions |
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Definition
any party may move to compel after reasonable notice to the other party
moving party must include a certification that the movign party has made good faith efforts to obtain the discovery without court order.
Rule 37 if MTC is granted, other party pay reasonable expenses incurred in making motion and attorney's fees. |
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Term
| Failure to Comply with Order Compelling Disclosure |
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Definition
The court SHALL require disobedient party or her attorney or both to pay the reasonable expenses (including attorneys fees) caused by failure, unless the court finds that the failure was substantially justified or that circumstances make award unjust.
May take following actions
1.) order establishing certain facts or matters
2.) order prohibiting evidence or arguing against claims
3.) striking pleadings or portions
4.) staying further proceedings
5.) order dismissing the action
6.) rendering judgment default |
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Term
Discovery
Automatic Disclosures |
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Definition
Rule 26 requires parties disclose certain info without waiting for discovery request
1.) factual basis for defense
2.) info about any person who has recorded a statement
3.) Insurance agreements
4.) all categories of damages
5.) disputed facts alleged with particularity
6.) name, address & PH# of any person with information about disputed facts
7.) copy or description of all docs, photos or diagrams relevant |
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Term
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Definition
A party may serve 30 interrogatories, including subparts, without leave of court. Must have court order to exceed 30
Each interrogatory shall be answered separately and fully in writing under oath.
Must specifically state the reason for withholding discovery. any claim not clearly made, is waived
Party can ask for the factual basis for another party's claim or defenses, but not the legal theories the opponent will rely upon |
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Term
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Definition
| Court will order telephonic deposition even over objection of party "for good cause and in the absence of substantial prejudice to the opposing parties." |
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Term
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Definition
Clerical errors can be corrected by a court at any time with or without a motion
6 categories of motions for relief of judgment (Rule 60(b)
1.) Mistake or excusable neglect (usually mistake of law) 1 yr max
2.) newly discovered evidence 1 yr max
3.) fraud or other misconduct by adverse party. 1 yr max
4.) void (no jurisdiction or due process violation)
5.) satisfied, released, or discharged: or "no longer equitable that judgment should have prospective application
6.) "Any other reason justifying relief" |
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Term
Judgment
Injunctive Relief |
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Definition
Under Alaska's "Balancing of the hardships" test, a court will consider
1.) the irreparable harm facing the applicant,
2.) the nature of the harm and the ability or adequately protect opposing party; and
3.) the strength of the applicant's case. |
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Term
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Definition
| Judgment creditor should seek a writ of execution for judgment debtor's property generally, a "WRIT OF EXECUTION" in garnishment for the judgment debtor's property held by a third party. Only one of each may be issued and outstanding at any one time and the creditor must come back and show a remaining debt to be issued the next writ.Court will issue a writ of execution for PFD. Judgment creditor may use any discovery, but most useful is a judgment debtor examination where debtor is asked Q's under oath and may be required to bring documents concerning any property that may be subject to execution. Judgments older than 5 yrs require a new motion. |
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Term
| Res Judicata (Claim Preclusion) |
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Definition
| A prior valid judgment on the merits OR NOT, precludes later litigation on the same transaction or occurrence between the two parties or those in privity with them |
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Term
| Collateral Estoppel (Issue Preclusion) |
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Definition
| A prior judgment on the merits precludes litigation on any issue necessarily precluded by any party, or one in privity. |
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Term
Rule 82
Attorney's Fees and Costs |
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Definition
The prevailing party shall be awarded full costs and partial attrney's fees.. For a contested case that goes to trial, the party should receive 20% of the first $25,000 and 10% thereafter. Lower percentages are provided for contested issues without trial and non-contested issues.
Prevailing party is one who is successful on the main issue of the action |
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Term
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Definition
| An offer of judgment must be in writing and is irrevocable for 10 days. It must be accepted in writing and the acceptance is filed with the court. The offer judgment may determine which party is the prevailing party for purposes of awards of attorney's fees. |
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Term
| Public Interest Litigants |
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Definition
Parties designated by the court as public interest litigants are not assessed the opponent's costs or attorneys fees when they lose and receive full costs and fees when they win.
Factors:
1.) is the case designed to effectuate strong public policies
2.) will numerous people receive benefits
3.) can only a private party be expected to bring suit, and
4.) does the purported public interest litigant have sufficient economic interest or incentive to file suit anyways? |
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Term
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Definition
| Party must demand jury trial within 10 days of last pleading directed to such issue, usually the answer. Once made by any party, the jury trial demand can only be withdrawn with the consent of all parties. |
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Term
| Preemption of Judges (Civil Rule 42(c)) |
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Definition
| "Each side" can preempt one judge and master before trial and within 5 days of notice that the case was assigned to a specific judge or within 5 days after a party appears or files a pleading (except in small claims) |
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