civ pro Flashcards
(105 cards)
1
Q
Subject matter JDX
generally
A
A federal court must have subject matter JDX in order to decide cases before it.
2
Q
Federal question JDX
A
A federal court has SMJ under federal question JDX if the complaint alleges a claim that arises under federal law
3
Q
well pleaded complaint rule
A
The federal question must be presented on the face of the plaintiff’s complaint. Raising a defense or filing a counterclaim under federal law does not trigger federal question JDX
4
Q
Diversity JDX
A
A federal court has SMJ under diversity JDX if there is complete diversity and the amount in controversy exceeds $75,000
5
Q
Complete diversity
A
Complete diversity is present if every plaintiff is a citizen of a different state than every defendant
6
Q
AIC and injunctive relief
A
A claim for injunctive relief may be valued by the benefit to the plaintiff or the cost of compliance to the defendant
7
Q
One P aggregating claims to meet AIC
A
- One plaintiff can aggregate all of her claims against one defendant to meet the amount in controversy requirement.
- One plaintiff can also aggregate all of her claims against multiple defendants if they are jointly liable
8
Q
Multiple Ps aggregating claims to meet AIC
A
If there are multiple plaintiffs, generally, each plaintiff’s claim must meet the amount in controversy requirement separately, unless supplemental JDX applies
9
Q
Things a federal court never has JDX over
A
A federal court does NOT have diversity jurisdiction for probate actions and domestic relation matters (e.g., divorce, child support/custody, etc.)
10
Q
Citizenship
general rule
A
The citizenship of each party to the action must be considered in order to decide whether complete diversity is present
11
Q
citizenship of individuals
A
- For individuals, citizenship is determined by the state or country of domicile (i.e., the place of residence where they intend to remain indefinitely)
- an individual can only have one domicile at a time
12
Q
citizenship of corporations
A
Corporations hold dual citizenship for diversity purposes
- the state or country of incorporation; and
- the state or country of its principal place of business (i.e., the nerve center, usually where the corporate headquarters are located)
13
Q
citizenship of unincorporated associations
A
unincorporated associations and partnerships are considered a citizen of every state in which its members are citizens
14
Q
Diversity for class actions
generally
A
- For class actions, the citizenship of each named party in the class who are suing count for diversity purposes
- Class members who are not named may join without regard to citizenship
15
Q
Supplemental JDX
generally
A
Supplemental JDX allows a federal court with valid SMJ over a case to hear additional claims which the court would not otherwise have JDX over if ALL the claims constitute the same case or controversy
16
Q
same case or controversy
for supplemental JDX
A
Claims constitute the same case or controversy if they arise out of a common nucleus of operative fact (meaning they arise out of the same transaction or occurrence)
17
Q
supplemental JDX in federal question cases
A
A federal court sitting in federal question JDX may hear a pendent state law claim under supplemental JDX if the state law claim arises out of the same transaction or occurrence as the federal law claim
18
Q
Compulsory counterclaims, diversity, and supplemental JDX
A
- A compulsory counterclaim is a counterclaim that arises out of the same transaction or occurrence as the original claim that was filed
- a federal court sitting in diversity JDX has supplemental JDX over a compulsory counterclaim
19
Q
Permissive counterclaims, diversity, and supplemental JDX
A
- a persmissive counterclaim is a counterclaim that does NOT arise out of the same transaction or occurrence as the original claim filed
- a permissive counterclaim can only be heard if it independently satisfies diversity JDX (complete diversity + AIC is met)
20
Q
Crossclaims, diversity, and supplemental JDX
A
- a cross claim is a claim filed by a P against another P, or a D against another D.
- A federal court in diversity JDX has supplemental JDX over a cross-claim if the cross-claim arises out of the same transaction or occurrence as the original claim
21
Q
Collateral order doctrine
A
The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue
- that is separable from and collateral to the merits of the case
- involves a serious and unsettled legal question AND
- would be effectively unreviewable if the court waited until final judgment to hear the claim or issue
22
Q
mandamus review
A
- under mandamus review, a court of appeals can immediately review an order that is an abuse of judicial authority (e.g., orders beyond TC discretion, orers that violate a mandatory duty of TC)
- such review does not extend to all orders that constitute an error of law
23
Q
Interlocutory order
definition
A
An interlocutory order is an order that is provisional, interim, temporary, or non final
24
Q
Appealability of interlocutory orders
A
- although most interlocutory orders are not immediately appealable, certain orders are reviewable as a matter of right, including
- an order granting, modifying, refusing, or dissolving an injunction
- an order appointing or refusing to appoint a receiver and
- a decree determining the rights and liabilities for parties in admiralty cases
25
Effect of a default judgment
- a default judgment has a **preclusive effect** if the court had valid personal and subject matter JDX
- Generally, a party is barred from **asserting defenses or compulsory counterclaims** that could have been raised in the original action
26
Collateral estoppel (issue preclusion)
Collateral estoppel precludes the re-litigation of **issues of fact or law** that have already been necessarily determined by a judge or jury as part of an earlier claim
27
Barring an issue under collateral estoppel
To bar an **issue** under collateral estoppel,
- the issue sought to be precluded must be the **same** as that involved in the prior action (facts and law identical)
- the issue must have been **actually litigated** in the prior action
- the issue must have been determined by a **valid final judgment on the merits**
- the determination of the issue must have been **essential** to the prior judgment
28
Res judicata
Res judicata provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action
29
Barring a claim under res judicata
To bar a claim under res judicata,
- the original claim must have resulted in a **final judgment on the merits**
- the original and later filed causes of action must be **sufficiently identical** (i.e., related to the same transaction or occurrence); and
- the **claimant and defendant must be the same** (and in the same roles) in both the original and later filed action, or privity exists between them
30
Final judgment rule
The federal courts of appeals have JDX over appeals from final judgments of the district courts
31
what is a final judgment
A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment
32
Motion for a new trial
The court may, on motion, grant a new trial for any of the reasons for which new trials have traditionally been granted
33
Reasons new trials are generally granted
Reasons courts have traditionally granted new trials include
- an **error** made at trial that renders the judgment unfair
- **newly discovered evidence** that existed at the time of the trial was excusably overlooked and likely would have **altered the outcome** of the trial
- **prejudicial misconduct** of counsel, a party, the judge, or juror
- a verdict that is **against the clear weight of the evidence**
- a verdict based on **false evidence** such that a new trial is necessary to **prevent injustice** or
- a verdict that is **excessive or inadequate**
34
Excessive verdict -- options the court has
If a verdict is excessive, the court may order a new trial OR offer the plaintiff **remittur**, which allows the plaintiff to choose beteween a lesser award or a new trial
35
JMOL
A judgment as a matter of law (JMOL) may be filed by either party after the close of the nonmoving party's evidence OR the close of all evidence
36
standard for granting a JMOL
- the motion will be granted when, viewing the evidence **in the light most favorable to the nonmoving party**, the court finds that a **reasonable jury would not have a legally sufficient basis to find for the nonmoving party**
37
Renewed JMOL
* A renewed JMOL may be filed no later **than 28 days** after the entry of judgment
* it may **only** be raised if a JMOL was previously filed
38
Granting a RJMOL
- a RJMOL will be granted if, when viewing the evidence **in the light most favorable to the nonmoving party**, the court finds that a reasonable jury **would not have a legally sufficient basis** to find for the nonmoving party
- a party is generally limited to those issues raised in the earlier JMOL
39
When may a MSJ be filed
A motion for summary judgment may be filed **at any time until 30 days **after the **close of discovery**
40
When may an MSJ be granted
A MSJ must be granted, if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in **the light most favorable to the nonmoving party**, it appears that
- no **genuine dispute of material fact** exists; AND
- the moving party is entitled to a **judgment as a matter of law**
41
12(b)(6) motions
A 12(b)(6) motion asserts that the plaintiff failed to state a claim upon which relief can be granted
42
When can 12(b)(6) be raised
The defense of failure to state a claim may be raised in a pleading, a motion for judgment on the pleadings, or at trial
43
How 12(b)(6) is analyzed generally
Under rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim.
44
2-step analysis for 12(b)(6) claims
Courts apply a 2-step determination in making this determination
- First, the court must identify and reject legal conclusions unsupported by factual allegations; then
- Second, the court should assume that the well-pleaded factual allegations are true, and, drawing on the court's experience and common sense, determine whether the allegations plausibly give rise to an entitlement of relief
45
When can a motion for failure to join an indespensible party by raised
The defense of failure to join an indespensible party may be raised in a pleading, motion for judgment on the pleadings, or at trial
46
Failure to preserve ESI
If ESI that should have been preserved in anticipation of litigation is lost because a party failed to take **reasonable steps** to preserve it, and it cannot be replaced through additional discovery, the court
- upon **finding of prejudice** may order measures no greater than necessary to cure prejudice; OR
- Upon finding the party acted with **intent to deprive** another party of information, the court may presume it was unfavorable, instruct the jury that they may presume that, dismiss the action. OR enter a default judgment
47
Rule 11b signature
* Every pleading, written motion, or other paper served **must be signed** by at least one attorney of record in their name or by a party if they are unrepresented
* The paper must state the signer's address, email, and telephone
* The court **MUST** strike an unsinged paper unless the omission is promptly correct after being called to their attention
48
11b representations to the court
By presenting a paper to the court, an attorney/unrepresented party certifies that **to the best of their knowledge, information, and belief** formed after a reasonable inquiry, that
- it is **not presented for any improper purpose**
- the claims, defenses, and legal contentions are **warranted by existing law** or by **nonfrivolous argument** for changing/extending the law
- the factual contentions have **evidentiary support** or, if so identified, will likely have support after reasonable opportunity for furhter investigation or discovery; **AND**
- the denials of factual contentions are warranted on the evidence, or if identified, are reasonably based on belief or lack of information
49
Opportunity to correct under rule 11
- Before a party may seek sanctions under rule 11, the party must serve on the opposing party a motion that describes the specific conduct that violated the rule
- The opposing party must be given **21 days** to withdraw or correct their pleading
- If the 21 day period passes, and pleading is not corrected, motion for sanctions may be filed with the court
50
Rule 11 sanctions
- the court (on motion or on its own) **may issue sanctions** for failing to comply with Rule 11
- Sanctions may include nonmonetary directives, an order to pay penalty into court, or **if imposed on motion**, an order directing payment **to the movant** for part or all of reasonable attorney's fees and other expenses
51
Imposing sanctions under R11
- sanctions may be imposed on the defendant's attorney, the law firm, and defendants
- monetary sanctions for **asserting an unwarranted legal contention** may **NOT** be imposed on defendants -- only the attorney or lawfirm
52
purpose and discretion in awarding sanctions
* The court has **considerable discretion in imposing sanctions**
* purpose of sanctions should be **to deter future conduct** by this lawyer or others
53
Failure to participate in discovery plan
If an attorney fails to participate in **good faith** in the development and submission of a proposed discovery plan, the court may, after providing an opportunity for a hearing, order the party or attorney to pay reasonable expenses, including attorney's fees
54
pretrial conference sanctions
The court may direct counsel and unrepresented parties to appear for pretrial conferences. The court may issue **sanctions** if counsel or a party
- fails to appear
- fails to participate in good faith; or
- fails to obey a pretrial conference order
55
Severest sanction for pretrial conference violations
Dismissal of an action is a severe sanction, and generally is only appropriate when a party's conduct is serious, repeated, extreme, or otherwise inexcusable
56
Attorney work product doctrine
| generally
The work-product doctrine protects materials prepared by an attorney or client **in anticipation of litigation** from discovery by opposing counsel
57
When is work product not protected
Materials prepared in anticipation of litigation are not protected from disclosure to opposing counsel **IF**
- the materials are **otherwise unavailable**
- there is a **substantial need** for the materials; AND
- the materials cannot be obtained **without substantial hardship**
58
what work product is never ever ever discoverable
A writing that reflects an attorney's impressions, conclusions, opinions, legal research, or theories is NEVER discoverable
59
What does a party who withholds info they believe is privileged have to do
When a party withholds information because they believe it is privileged or covered by the work-product doctrine, the party **MUST** make the claim expressly and describe the nature of the documents in a manner that will enable other parties to asses the applicability of the privilege or work-product doctrine
60
Duty to preserve evidence
* When it can be **reasonably anticipated** that an action will be filed, all parties have a duty to preserve potentially relevant evidence
* evidence includes all information, not just hard copy documents, but also ESI on any medium and any electronic format
61
How can interrogatories be served
| number and to whom
* Any party may serve no more than **25 written interrogatories** on any other party
* Interrogatories may **NOT** be used on nonparties
62
Scope of interrogatories
Interrogatories may relate to any non privileged matter that is
- relevant to any party's claim or defense; AND
- proportional to the needs of the case
63
Answers and objections
- interrogatories must be answered fully and separately under oath by the party to whom they are directed, unless the responding party objects by stating specific grounds
- responding party must serve answers and any objections within **30 days** after being served with the interrogatories
64
Depositions
- A party may take the deposition of **any party **or **nonparty witness** (with a subpoena) at any time **after the party has made its initial disclosures**
- without leave of court, Ps and Ds, each as a group, are limited to **10 depositions** by oral or written examination
- An oral deposition is limited to **1 day of 7 hours**, unless the parties agree otherwise or court orders otherwise
65
notice for depositions
A party who seeks an oral deposition of a person must give reasonable written notice to every other party, stating the time and place of deposition and, if known, the deponent's name and address
66
Scope of discoverable information
Generally, discovery is permitted to any **nonprivileged** matter that is
- relevant to the party's claim or defense; AND
- proportional to the needs of the case
67
Limits on discovery
On motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that
- discovery sought is **unreasonably cumulative** or can be obtained from some other source that is **more convenient or less expensive** or
- the party seeking discovery had ample opportunity to obtain the information by discovery in the action
68
Timing of initial disclosures
Each party **MUST** make certain **initial disclosures**, even if an opposing party does not ask for such information, within **14 days** after the parties' rule 26(f) conference
69
What is included in initial disclosures
Initial disclosures include
- names, addresses, and phone numbers of individuals **likely to have discoverable information** tha the disclosing party **may** use to support its claims, unless the use would be solely for impeachment
- copies or descriptions of documents, ESI, and tangible things that the disclosing party **may** use to support its claims or defenses, unless solely for impeachment;
- computation of damages and copies of materials that's based on; AND
- copies of insurance agreements under which an insurer MIGHT be liable for all or part of a judgment
70
26(f) conference
The parties must confer as soon as is practicable to
- consider claims and defenses, possibility of settlement, initial disclosures, and a settlement plan; AND
- submit to the court a proposed discovery plan addressing the timing and form of required disclosures
71
Class action
A class action is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group
72
When is a class action proper?
- the class is so **numerous** that joinder of all members is impracticable
- There are questions of **law or fact common ** to the class
- the named parties' interests are **typical** of the class; AND
- the named parties will **adequately represent** the interests of the absent members of the class
73
When will a class be certified
Once the four requirements (numerousity, commonality, typicality, and adequacy) are met, a class will be certified if
- separate actions would create a **risk of inconsistent results** or **impair the interests** of unnamed parties
- **injunctive or declaratory relief** is appropriate for the class as a whole; OR
- **common questions of law or fact predominate** over individual issues and a class action is **superior to alternate methods of adjudication**
74
Intervention
Intervention permits a **nonparty** to intervene in an action
75
Intervention as of right
Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, AND the disposition of the action without him would impair his ability to protect the interest
76
Permissive intervention
* Intervention is permissive when the applicant's claim or defense and the main action have a question of law or fact in common.
* Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court
77
Interpleader
Interpleader allows a P or D to initiate a lawsuit in order to compel to or more other parties to litigate a dispute
78
interpleader by P
Persons with a claim that might expose a P to **double or multiple** liability may be joined as Ds and required to interplead.
79
wheni s joinder for interpleader by P proper
Joinder for interpleader is proper even though
- the claims of the several claimants, or titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR
- the plaintiff denies liability in whole or in part to any of the claimants
80
interpleader by a D
A D exposed to similar liability may seek interpleader through a crossclaim or counterclaim
81
permissive joinder of parties
Parties **may** join as plaintiffs or Ds when
- some claim is made by each P and against each D that arises out of the same transaction or occurrences; AND
- there is a question of law or fact common to the parties
82
Compulsory joinder
A P must join an absent party or face dismissal of lawsuit if
- court has personal JDX over absentee
- absentee's presence would not destroy SMJ; AND
- either (i) complete relief cannot be accorded in their absence, OR (ii) the absentee has such an interest that a decision in his absence will impede his ability to protect the interest or leave any of the other parties subject to a risk of multiple/inconsistent obligations
83
Relation back doctrine
The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading.
84
relation back for new claim
if the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading
85
relation back with new parites
If the pleading is amended to include a new party or change their name, the amendment will relate back if
- it asserts a claim that arose out of the same transaction or occurrence set out in the original pleading
- the party receives notice within 90 days after filing the original complaint such that they will not be prejudiced; AND
- the party to be brought in by amendment knew or should have knwon that the action would have been brought against him, but for a mistake concerning their identity
86
Removal
Removal allows the D to move a case from state court to federal court if the case could have been brought originally in federal court
87
requirements for removal
| generally
Removal must be sought
- by the D ONLY
- within 30 days of learning the grounds for removal
88
time limits on removal
A D cannot remove his case after one year from the commencement of the action, unless the P acted in bad faith to make it nonremovable
89
removal for federal Q cases
the D may remove the case to federal court if the well pleaded complaint discloses that the claim is based on federal law
90
diversity and removal
The D may remove the case to federal court if
- complete diversity is present
- the AIC exceeds 75k; AND
- the action is brought in a state where NO defendant is a citizen
91
Personal JDX requirement
A court MUST have personal JDX in order to adjudicate the rights and liabilities of a defendant
92
traditional bases for personal JDX
- domicile
- physical presence
- consent
- waiver
93
PJ based on domicile
Domicile will be satisfied if the D is domiciled in the forum state. If the D is a corporation, it must be at home in the forum state (e.g., state of incorporation + PPOB)
94
PJ based on physical presence
Service of process on a D while he is physically present in the forum state will satisfy this UNLESS he is there only to answer summons or was brought there by force or fraud
95
PJ based on consent
out of state defendants may consent to personal JDX
96
personal JDX by waiver
* Unlike SMJ, lack of personal JDX can be waived by the D
* A D waives PJDX by substantial participation in the merits before raising the objection (e.g., making a general appearance)
97
Long arm statutes
If none of the traditional bases for PJDX are satsfied, PJ may still be obtained by using a state long arm statute
98
requirements for long arm statutes
These statutes require that minimum contacts exist between the D and the forum state
99
When do minimum contacts exist
Sufficient minimum contacts exist when
- general or specific JDX is present; and
- the exercise of PJ does NOT offend traditional notions of fair play and substantial justice
100
things courts will consider to see if traditional notions of fair play and substantial justice are satisfied
- convenience for D
- whether forum state has legitimate interest in providing redress
- whether P's interest in obtaining relief is proper
- the interstate judicial system's interest in efficiency; AND
- shared interest of the several states in furthering social policies
101
General JDX
* general JDX is present when the D is essentially "at home" in the forum state.
* when general JDX is present, the D can be sued on ANY claim
102
specific JDX
specific JDX gives courts JDX over out of state defendants for their specific contacts with the forum state. the claim MUST arise out of the D's specific contact with the forum state
103
When is specific JDX present
specific JDX is present if
- the D purposefully availed himself of the benefits of the forum state
- the D knew or reasonably should have anticipated that his activities in the forum state made it foreseeable that he may be hailed into court there
104
specific JDX for stream of commerce cases
generally, there will be specific JDX over a D if the D
- places a product in the stream of commerce for the forum state; AND
- commits some other act to show intent to serve the forum state
105
passive website
* A passive website is one that is used for information purposes rather than online sales or commerce
* a passive website is generally not enough to establish general JDX. it may be sufficient for specific JDX if the D is targeting readers in the forum
