Civ Pro Flashcards

Question

In a Diversity case, the claim is based on state law. Must judge apply state law?

Answer 1

**Erie Doctrine** **STEP 1: ** Is there a *valid ***federal law on point** that directly conflicts with state law? * If yes, apply federal law **STEP 2:** If there is **no federal law on point**, a federal judge **must apply state law if substantive issue. **5 Clearly Substantive Issues: ** 1. Conflict or choice of law rules 2. Elements of a claim or defense 3. Statute of limitations 4. Tolling of statutes of limitations 5. Standard of granting a new trial because the jury’s award was excessive or inadequate **STEP 3: ** **NO federal law on point + issue is NOT CLEARLY substantive**, then judge must **determine whether issue is substantive by considering ALL of the following**: **1. Outcome determinative** Would applying the state law affect the outcome of the case? If so, issue is substantive, and apply state law. **2. Balance interest factors** Does either the state or federal system have a strong interest in whether its rule should apply? If so, apply the one with the greater interest. **3. Avoid forum shopping ** If the fed. Court ignores state law on this issue, will this cause litigants to flock to federal court? If so, apply state law. **Federal Common Law** Certain areas where federal judges can make judge-made law: International relations Admirality Disputes between states Right to sue federal officer Federal common law will govern the preclusion of a judgement.

Answer 2

SMJ tells us we can bring a case to federal court, but the **venue tells us which federal district. ** *Below applies only to case **initially filed in federal court --> NOT removal:*** **1. Any district where *all* DEFENDANTs reside **However, the venue is proper in any district where D resides if all Ds reside within the state. * Humans reside in any district where they are domiciled. * Businesses reside in all districts where they are subject to PJ for the case in question (specific or general).** **2. -or- Where substantial part of claim arose or substantial part of property is located ** * More than 1 district can satisfy this requirement * Substantial does not mean all NOTE: **IF NO D RESIDES IN USA,** then venue can be in ANY district

Answer 3

* Transfer occurs when c**ourt sends a case to another court *within the same judicial system*** * **Transferee must be a proper venue + have PJ over D**. * ^Exception: if all Ps and Ds consent, and court finds cause for transfer.

Answer 4

* Court can order transfer based on **convenience of the parties and witnesses** in the interest of justice Court will **consider public and private factors showing that the other court is the center of gravity** for the case: *** Public:** What law applies, what community should be burdened with jury service, desire to keep local controversy in local court **Private: ** *Convenience. For ex- where the witness for the case lives and where the evidence is. * **Effect on Choice of Law** Transferees usually must apply the choice of law rules of the OG transfeROR court. **Effect of Forum Selection Clause** * Federal courts will apply the forum selection clause, **unless **public interest factors weigh against it. * When a case is transferred based on forum selection clause, the TRANSFEREE court will **apply its OWN choice of law rules**. Under Erie, required to apply choice of law rules of state in which the court sits.

Answer 5

If venue improper, court will: * Transfer if in interest of justice **-or-** * dismiss. **Effect of Choice of Law** Transferee will apply its OWN choice of law rules. Under Erie, federal court required to apply choice of law rule of the state in which its located.

Answer 6

**Forum Non Conviens applies** when **venue transfer is NOT possible bc you cannot transfer to a *different judicial system.*** Center of gravity is elsewhere in another judicial system. Court will **consider public and private factors showing that the other court is the center of gravity** for the case: *** Public:** What law applies, what community should be burdened with jury service, desire to keep local controversy in local court **Private: ** *Convenience. For ex- where the witness for the case lives and where the evidence is. * Court will **stay or dismiss the case**, with expectation that P will then sue in the other court **The other court must be adequate. Will be adequate unless the P can get NO remedy there at all. **

Answer 7

1. Grounds for SMJ (not PJ or venue) 2. short + plain statement show P is entitled to relief 3. demand for relief (damages, injunction, etc.) P must plead *sufficient *facts to support a ***plausible ***claim. *Exception: Matters Requiring More Detail or* *Specificity * **Fraud ** Mistake Special damages

Answer 8

D must respond by *motion or answer* within: 21 days of service of process 60 days if D waived service

Answer 9

The following defenses need to raised in a 12(b)(6) motions to dismiss within 21 days of service of process -or- 60 days if D waived service: * Lack of PJ * Improper venue * Improper process (documents - summons and complaint) * Improper service of process

Answer 10

* Failure to state a claim * Failure to join an indispensable party

Answer 11

lack of SMJ can be raised anytime- even after trial on appeal

Answer 12

If MTD is denied, then D must serve an Answer within 14 days after denial.

Answer 13

1. Respond to the allegations in complaint: * Admit * Deny * Lack of sufficient information (has effect of denial) 2. Raise affirmative defenses NOTE: * Failure to deny an allegation, is admittance. * Affirmative Defense are waived if not asserted in Answer

Answer 14

P has the right to amend her complaint once before D responds via motion or answer. D has right to amend once no later than **21 days after D serves her first Response (motion or answer).** **Amendments After Time to Amend Expires** With court permission if justice so requires Allowed unless delayed too long, will prejudice other party, or amendment would be futile

Answer 15

D had right to amend her answer **no later than 21 days after being serving it** **Amendments After Time to Amend Expires** With court permission if justice so requires Allowed unless delayed too long, will prejudice other party, or amendment would be futile

Answer 16

* Variance occurs when **evidence at trial does NOT match what was pleaded.** ****If another party **fails to object**, the party introducing the evidence can move to **amend the complaint to conform to the evidence. **

Answer 17

**To Join a Claim Not Originally Asserted:** * An amended pleading “relates back” if it **concerns the same conduct, transaction, or occurrence **as the original pleading. * The related amended pleading is t**reated as though it was filed on date that original pleading** was filed so you a**void statute of limitations issue**

Answer 18

**D knew or should have known** within the service or process period (90 days) that **P made a mistake by not naming him in original pleading ** The amendment “relates back” and is within the propert process period, if it c**oncerns the same conduct, transaction, or occurrence as the original pleading.**

Answer 19

* Supplemental pleading set forth t**hings that happened AFTER pleadings were filed** - NOT an amendment. * Party must make a motion for a supplemental pleading – which may be granted or denied.

Answer 20

***Rule 11: *** When a **lawyer or pro se party signs documents**, they are **certifying** to the best of their knowledge and belief, after reasonable inquiry, **these things are true: ** * Paper **NOT for improper purpose** * Legal **contentions warranted by law** or good argument law should be changed * Factual contentions and denials have **evidentiary support ** ***Sanctions*** When Rule 11 certification is violated, sanctions may be imposed against the **lawyer, firm, and/or party.** Purpose: To deter a repeat of conduct – not to punish. **Before imposing sanctions, the court must give the sanctioned party an opportunity to be heard.** ***Type of Sanctions*** **Non-monetary Monetary – paid only to the court- not opposing party** ***Safe Harbor Provision*** Party seeking sanctions **must serve a motion on the opponent, before filing the motion for sanctions.** **Party in violation has 21 days to fix** before motion for sanction can be filed with the court.

Answer 21

P may join as many claims as P has against D even if unrelated **BUT there MUST BE SMJ OVER EVERY CLAIM**

Answer 22

Joinder defines the scope of the case–how many parties and claims can be joined.

Answer 23

Can join multiple Ps or Ds if: 1. Arise from same **transaction or occurrence** **-AND-** 2.Raise at least **one common question of law or fact** **BUT still need to go through PJ and SMJ**

Answer 24

* Court can force nonparties into the case if they are necessary and indispensable. *Necessary parties should be joined if feasible--meaning there is PJ over the party and SMJ over the claim. A party is necessary if: (1) the court cannot accord complete relief w/o them (2) their interest will be harmed if they are not joined (3) or they claim an interest which subjects a party to multiple obligations.

Answer 25

Counterclaim: claim against an opposing party When D asserts counterclaim against P, P has 21 days to respond

Answer 26

A compulsory counterclaim arises from the **same transaction or occurrence**– i**f you don’t use it then you lose it!** Need SMJ too! Permissive Counterclaim does **NOT **arise from same transaction or occurrence **Not lost–can sue in separate case** Need SMJ too!

Answer 27

Crossclaim is a claim **against a co-party** Must arise from the **same transaction or occurrence** **Never compulsory ** Need SMJ too! NOTE: If a co-party sues back, then it's a counterclaim.

Answer 28

**D Brings in a new party (called the third party Defendant** "TPD") **For indemnity or contribution ** Indemnity: TPD pays all damages to P Contribution: TPD pay damages to P pro rate **Never compulsory ** **How to Implead** D must file a 3rd party complaint and have it formally served on TPD D has **right to implead until 14 days after Answer**, and after that must ask court permission After TPD Joined **P can assert claims against TPD, and TPD can assert claims against P** They must be of **same transaction or occurrence as the underlying case -AND- NEED SMJ for each claim**

Answer 29

A **non-party** uses intervention to ***bring herself* in the case as a P or D.** Must be “timely” Intervention of right -or- permissive **If an intervening party would be harmed if not joined,** and interest not adequately represented by the parties, that results in **intervention of right.** If at least **one common q of law or fact, intervention is permissive.** **Court has discretion** whether to allow. ** Need SMJ for intervention! **

Answer 30

**Class Action is a case in which a representative(s) sues on behalf of group** *Need CANT* **1. Commonality** Resolution of an issue will decide something for everyone at once **2. Adequate representative ** **3. Numerosity** Is it too many to join as regular co-Ps **4. Typically ** Class rep’s claim must be typical of the class members-- action based on same injury or same conduct of the D

Answer 31

**1. Common Questions or Damages** * Common questions predominate over individual ones * Class action is superior method for handling dispute * Court MUST notify members that they are in a class, paid for by the rep, says they will be bound if they assert their right to opt out **2. Injunctive or Declaratory Judgment ** D treated class members alike Cannot seek damages **3. Prejudice** Class treatment necessary to prevent harm or prejudice – very rare