40个美国民诉法法律英语概念(下)

教育   2024-10-17 21:10   美国  

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今天给小伙伴整理一下美国民事诉讼法下的法律英语概念:


Crossclaim 交叉诉讼

This is a claim against a co-party. It must arise from the same Transaction/Occurrenceas the underlying action. But it is not compulsory—you may assert it here or sue separately.


Class Action 集体诉讼

Representative(s) sues on behalf of group. Must demonstrate all four of these. Numerosity: Too many class members for practicable joinder. Commonality: There is some issue in common to all class members.Typicality: Rep’s claims are typical of those of the class. Representative adequate: The class representative will fairly and adequately represent class.

Impleader 追加被告

Defending party (usually Defendant) is bringing in someone new. The new party is the third-party defendant (TPD).FRCP permits a defendant to bring a third party into an action if the defendant believes the third party "may be liable"to the defendant for all or part of the plaintiff's claim against the defendant.


Intervention 加入诉讼

A nonparty brings herself into the case. She chooses to come in either as Plaintiff (to assert a claim) or as Defendant (to defend a claim). The court mayrealign her if it thinks she came in on the wrong side.

Discovery 证据开示

Discovery is a process by which attorneys gather information concerning the opposing party's case. A party may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense in the action. Relevant information is discoverable even if it would be inadmissible at trial, so long as the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Depositions 口头质询

A person gives live testimony in response to questions by counsel or pro se parties. The questions are usually oral, but can be written (if written, they are read by the court reporter). Deponent testifies under oath. The deposition is recorded by sound or video and a transcript can be made. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

Interrogatory 书面质询

Interrogatories are written questions, to be answered in writing under oath. you must respond based upon information reasonably available to you. You can not respond to interrogatories by saying that you do not know the answer.


Notice to Produce/Request to Produce 请求开示.

These request that someone make available for review and copying documents or things, including electronically stored information(ESI), or to permit you to enter designated property to inspect, measure.


Request for Admission 请求自认

This is a written request that someone admit things. Responding party must respond in writing within 30 days of service, either denying specifically or objecting. Only if she made a reasonable inquiry and cannot find enough information from which to admit or deny, the responding party can say she does not know the answer.


Work Product Doctrine 工作成果原则

The so-called work product rule allows a party to refuse to turn over documents that are prepared in anticipation of litigation or for. Documents prepared in anticipation of litigation do not need to be disclosed to an adverse partyunless that party can demonstrate a substantial need for the documents and an inability to obtain substantially equivalent information without undue hardship.


Litigation hold 诉讼保留.
When litigation is reasonably anticipated, parties must preserve discoverable information. Suppose ESI is truly LOST—it cannot be recovered or restored. And suppose it was lost because the party in control of it failed to take reasonable steps to preserve it. The court may “order measures” to curb the harm caused to the other party.

Temporary Restraining Orders 临时限制令

A temporary restraining order (TRO) is an equitable remedy that may be issued ex parte (without notice) to prevent irreparable harm until the court has an opportunity to rule on a motion for a preliminary injunction. If the court issues the TRO, Applicant must post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.


Preliminary Injunctions 临时禁止令
A preliminary injunction is an equitable remedy that enjoins a person from engaging in specified behavior, or requires a party to engage in specified behavior, during the pendency of the action. Preliminary injunctions are injunctions that seek to protect the plaintiff fromirreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits. Preliminary injunctions may be granted only if the movant gives securityin an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.


Voluntary Dismissal 自愿撤诉

P has a right to take a voluntary dismissal by filing a notice of dismissal before defendant answers. But she only gets to do it without prejudice once. What if P files a notice of dismissal in the second case? That dismissal is with prejudice.

Default and Default Judgment
缺席审理和缺席判决

D does not respond to the complaint in time. A default is a notation by the court clerk on the docket sheet in the case. The court clerk does not enter defaultautomatically. Entry of default does not entitle P to recover. To recover from D, she needs to get a default Judgment.


Summary Judgment即决判决/简易判决
A motion for summary judgment is a request made that the court enter judgment without a trial. Summary judgment should be granted in favor of a party if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

Scheduling Order 安排令状
Unless local rule or court order says otherwise, the court enters an order scheduling deadline for joinder, amendment, motions, completion of discovery, etc. This is a roadmap for how the litigation proceeds up to trial.


Final Judgment Rule 最终判决规则

Loser has a right to appeal if the order is a final judgment. A final judgment is one that determines the merits of the entire case.


Claim Preclusion 诉由排除.

Under the doctrine of Res Judicata (i.e., claim preclusion), You only get to sue on a claim once. So, you only get one case in which to vindicate all rights to relief for that claim.


Issue Preclusion (Collateral Estoppel)争点排除

The doctrine of collateral estoppel (or issue preclusion) generally prevents a litigant from relitigating issues that have been previously litigated and determined in a prior action. Issue preclusion arises in a second action on the basis of a prior decision when the same issue is involved in both actions; the issue was actually litigated in the first action, after a full and fair opportunity for litigation.


陆续分享美国部门法法律英语概念和词汇。


Personal Jurisdiction 对人管辖权

Personal jurisdiction (PJ)- is about the court’s power over the parties not the case, Because Plaintifffiled the case, the court automatically has power over Plaintiff. The big Question is PJ over Defendant: Can Plaintiff sue Defendant in this state?


Specific Jurisdiction 特殊管辖权

Arises from a connection between the state and the underlying claim and permits a state to exercise jurisdiction only with respect to that claim. (a)Defendant has specific contact with the forum state (b)Cause of action arises out of or relates to the Defendant’s contacts with the forum.


General Jurisdiction 一般管辖权

General personal jurisdiction permits the state to exercise personal jurisdiction over Defendant for any claim anywhere in the world. To have a general PJ, Defendant must be at home (is domiciled) in the forum.


Long-Arm Statute长臂管辖法案

A long-arm statute allows for a state court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant,provided that the defendant has a sufficient connection with the state. A state’s long-arm statute permits it toassert personal jurisdiction over a defendant to the extent permissible under the Due Process clause. This jurisdiction permits a court enter a binding judgment against the defendant.


In rem – 对物管辖权

Power over Defendant’s property that is the subject of a lawsuit (jurisdiction does not attach to Defendant, judgment enforced only against Defendant’s property). Quasi in remis the power over Defendant’s property that is NOT the subject of a lawsuit.


Subject matter jurisdiction事项管辖权/对事管辖权

Generally, state and federal courts have subject matter jurisdiction concurrently unless the federal court has exclusive jurisdiction as designated by statute or the constitution. The two main bases of subject matter jurisdiction in Federal courts are federal question and diversity cases.Cases under a few federal laws must be brought in federal court–e.g., patent infringement, bankruptcy, some federal securities, and antitrust claims.


Federal Question联邦问题

A claim arises under federal law if federal law creates the cause of action. To determine whether such federal-question jurisdiction exists, a court looks at the allegations necessary for a well-pleaded complaint and asks whether the claims stated by those allegations are created by federal.


Diversity of Citizenship – Individuals个人的异籍

For purposes of the diversity statute, a person is considered a citizen of the state in which he is domiciled.A person’s domicile is his or her permanent home,the place where a person intends to remain indefinitely, and the place to which the person intends to return when temporarily absent.


Diversity of Citizenship – Corporations 公司的异籍

By statute, a corporation is a citizen both where it is incorporated and where it has its principal place of business. Some courts used a nerve-center test that focused on where the corporation’s decision-making authority was located.


Removal 法院的转移

Plaintiff has sued Defendant in state court. Defendant would prefer to litigate in federal court. Defendant might be able to “remove” the case to federal court. Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can remand the case back to state court.


Supplemental Jurisdiction 附属管辖权

Supplemental jurisdiction is a form of federal Subject Matter Jurisdiction. Diversity and Federal Question get cases into federal court. Supplemental jurisdiction it gets claims into a federal. The claim we want to get into federal court must share a “common nucleus of operative fact” with the claim that invoked federal SMJ. A claim arises from the same transaction or occurrence as the underlying case.


Service of Process 传票的送达

In a regular lawsuit, notice consists of two documents: (1) a summons and (2) a copy of the complaint.Together, these two documents are called Process. Service of Process upon an individual may be accomplished by: (1) Personal Service; (2) Substituted service: leaving a copy at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or (3) delivering a copy of the summons and complaint to an agent authorized to receive service of process.


Erie doctrine伊利原则

Under the Erie doctrine, state substantive law applies in federal court suits brought under state causes of action. When a federal court is hearing a case under its diversity jurisdiction, it must apply the same substantive law. Four issues are clearly substantive:(1) elements of a claim or defense, (2) statute of limitations, (3) rules for tolling statutes of limitations, and (4) conflict (or choice) of law rules.


Venue审判地

Venue is a geographical concept that localizes lawsuits in places that are connected either to the parties or to the events giving rise to the action. Subject matter jurisdiction told us we can take a case to federal court. Venue tells us exactly which federal court. The country is divided into federal districts. Plaintiff is suing in federal court and wants to lay venue in a proper district.


Transfer 移送

Transfer goes from one trial court in a judicial system to another trial court in the same judicial system. So, a federal district court may transfer the case to another federal district court. The original court is the transferor and the one to which the case is sent is the transferee.


Forum Selection Clause法院地选择条款

A forum-selection clause is a provision in which the parties agree that a dispute between them will be litigated in a particular place. If one party sues the other in violation of a forum selection clause, the D may seek to enforce the forum selection clause through a motion to transfer.


Forum Non CONVENIENS 法院不方便管辖

There is another court that is the center of gravity, that makes more sense than the present court. The decision is based on the same public and private factors as transfer, including the existence of a valid forum selection clause.


Joinder 追加当事人或诉讼

Joinder rules define the scope of the case—how many parties and claims can be joined in one case.


Necessary and Indispensable Parties必要当事人/不可缺少当事人

An absentee who meets any of these tests a. Without A, the court cannot accord complete relief among existing parties OR b. A’s interest may be harmed if he is not joined OR c. A claims an interest that subjects a party (usually D) to a risk of multiple obligations.


Counterclaim 反诉

A claim against an opposing party. Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by Defendant against Plaintiff. The counterclaim is part of Defendant’s answer. Compulsory Counterclaim and Permissive Counterclaim.


陆续分享美国部门法法律英语概念和词汇。



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