Civ Pro Flashcards
(9 cards)
Explain the Rule for PJ.
Personal jurisdiction can be general (obtained by consent, presence, or domicile) or specific. Federal district courts may exercise personal jurisdiction to the same extent as the courts of general
jurisdiction of the state in which the district court sits. State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state’s long-arm statute
and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.
The Due Process Clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of
personal jurisdiction would not offend traditional notions of fair play and substantial justice.” Through these contacts it can be said that the defendant “purposeful avails” themselves to the benefits and protections of the state.
Explain the rule for summary judgment.
“Federal Rule of Civil Procedure 56(a) allows a summary judgment motion to be granted only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” A motion for summary judgment may be supported by depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.”
The moving party must produce evidence to show there is no genuine issue of material fact. The burden then shifts to the nonmoving party, which must then produce evidence to show that there is a genuine issue of material fact for trial. The motion is looked at in the light most favorable to the nonmoving party.
Explain the rule for TROs
TROs: A TRO can be issued without notice to the adverse party (but only in limited circumstances and for a limited time).
To secure a TRO without notice, the plaintiff needs to show a risk of “immediate and irreparable injury.” The TRO lasts only long enough for the court to consider and resolve a request, but not longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension). TROs are considered to be stopgap measures and last until the court decides whether to grant a preliminary injunction.
Explain the rule for injunctions
A preliminary injunction is equitable relief with the objective of preserving the
status quo. If it is granted, the matter must be tried within six months unless the parties stipulate or good cause is shown.
The court must give notice to the adverse party.
There are four factors to consider (mnemonic=HELP):
(1) harm: the significance of the threat of irreparable harm to the plaintiff if the
injunction is not granted,
(2) evaluation of injuries: the balance between this harm and the injury that
granting the injunction would inflict on the defendant,
(3) likelihood of prevailing: the probability that the plaintiff will succeed on the merits, and
(4) the public interest
Rule regarding discovery
Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense.
In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Explain the rule regarding spoilation
A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information. Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it. If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business. A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.
Explain the rule regarding sanctions for spoilation
Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.
When retrieval of the information is possible, even if typically considered inaccessible due to cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed. If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party.
If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.
Rule regarding change of venue and forums selection clauses
For the convenience of the parties and in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Venue is proper in a judicial district in which any defendant resides or in a judicial district in which a substantial part of the events or omissions on which the claim is based occurred.
Moreover, when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases,” even if the clause is unenforceable under applicable state law.
Give the rule regarding takings
Eminent domain. Neither the federal government nor the state may take private property for public use without just compensation. This arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment. A taking can be physical or regulatory (e.g., an exaction). An exaction exists when the government enacts a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop
the land. These are takings unless the government can show a legitimate government interest and “rough proportionality” (i.e., the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner).
