Civ Pro Flashcards
1
Q
The basis for federal SMJ must be
A
affirmatively pleaded in every case
2
Q
Lack of SMJ may not be
A
waived
3
Q
Objections to SMJ may be raised
A
by any party at any time (including by plaintiff, by the court itself, or on appeal)
4
Q
Federal Question Jx must be
A
based on federal law and pleaded in plaintiff’s well-pleaded complaint
Note: only P’s claims count for establishing jx, potential federal defenses are irrelevant to determining federal question jx)
5
Q
Requirements for Diversity Jx
A
(1) No P is same citizen as any D, and
(2) Amount in controversy exceeds $75,000
6
Q
Diversity is determined
A
when the complaint is filed
7
Q
Minimal diversity arises when
A
any plaintiff is diverse from any defendant
Applicable to:
(1) Federal Interpleader Act
(2) Class actions of at least 100 people with AiC exceeding 5 million (Class Action Fairness Act)
(3) Interstate mass torts (more than 75 dead)
8
Q
Citizen’s domicile is determined by
A
residence + intent to remain indefinitely (can only have one domicile)
9
Q
Corporations domiciled
A
(1) Where incorporated, and
(2) Where it has principal place of business
Corps can have multiple domiciles / citizenships
10
Q
Aggregation of claims to reach $75k threshold is
A
OK for 1 P v. 1 D
NOT OK for 1 P v. Multiple D
NOT OK for Multiple P v. 1 D
11
Q
Removal is only proper if
A
(1) Case could have been brought originally in federal court
(2) Removal made by Defendant (unanimous agreement within 30 days of service)
12
Q
Removal based on diversity is only proper if
A
(1) Complete diversity
(2) AiC exceeds $75,000
(3) The action is brought in a state of which no defendant is a citizen
13
Q
Upon Removal, State Jx
A
Automatically ends
P can file to remand back to state court, which is determined by the federal court
14
Q
Supplemental Jx allows federal courts to hear additional claims if
A
the additional claim arises from the same case or controversy (common nucleus of operative fact / same transaction or occurrence) as the anchor claim
15
Q
Supplemental Jx is
A
permissive (courts have discretion to hear or not hear additional claim - no absolute requirement)
16
Q
Plaintiff rights v. Defendant’s rights under Supplemental Jx
A
Broadly available for Defendants to bring claims in under Supplemental Jx, much more limited for Plaintiffs (generally OK just against one defendant where no joinder rule is involved)
17
Q
Must permissive counter claims independently satisfy diversity requirements for Supplemental Jx?
A
Yes (as opposed to compulsory counter claims which do not)
18
Q
Cross-claims must satisfy
A
relatedness requirement (same transaction or occurrence)
Note: ALL cross-claims are permissive
19
Q
May plaintiffs who do not independently satisfy diversity requirements join a suit against a single defendant if at least one plaintiff can meet requirements?
A
Yes (so long as other plaintiffs have related claims)
20
Q
Long Arm statutes allow for
A
specific in personal jurisdiction over out of state defendants for particular transactions involving that state
21
Q
Elements of determining PJ
A
(1) Has basis for extending PJ over out of state defendant been authorized by statute or rule of court?
(2) Is particular basis for establishing PJ permitted by Due Process clause
22
Q
A defendant may waive objections to PJ by
A
(1) Consent
(2) Voluntarily litigating (absent raising PJ in defense)
(3) Substantial participation on the merits before raising objection
Note: Defense to PJ must be asserted in first response / motion, but may be done in an amended response (within 21 days)
23
Q
Objection to PJ must be raised
A
At the first opportunity to do so (generally either motion to dismiss or in the answer)
24
Q
To establish (specific) PJ, due process requires
A
minimum contacts between the defendant and forum state and consistent with traditional notions of fairplay and substantial justice
25
To establish minimum contacts, courts look to whether
defendant purposefully availed themself to the forum state and whether it would be consistent with traditional notions of fair play and substantial justice
26
General PJ v. Specific PJ
General PJ: May bring any claim whatsoever, even if unrelated to D's contacts with forum state
Specific PJ: P's claims must arise out of / relate to D's contacts with forum state
27
Bases for General PJ
(1) Physical presence within state (absent force or fraud)
(2) Domicile (independent of physical presence)
(3) Consent
(4) Corporations (where "at home" -incorporated OR has principal place of business)
"Continuous and systematic contacts with forum state"
28
Specific PJ turns on
the connection between a lawsuit and the defendant's contacts with the forum (arise out of D's contacts / be related to those contacts)
Minimum contacts test
29
Bulge provision allows for service
Anywhere within 100 miles of federal court house for:
(1) Impleading 3rd party defendants under rule 14, AND
(2) Joining necessary parties under rule 19
30
In Rem Jx is
A form of specific PJ against a thing (the res)
State's courts must have physical power over property (e.g. land, bank account)
31
Service generally includes
a summons and copy of the complaint
32
Federal Laws for service always allow
(1) Personal delivery
(2) Leaving summons at defendant's dwelling with a person of suitable age and discretion
(3) Delivery of summons to an authorized agent
(4) Mail requiring a signed receipt (for persons in foreign countries)
Note: Service is proper pertinent to the laws of the state where service is made (e.g. if a state allows service by certified mail, and service is done so within that state, it is satisfied)
33
For service on minors and those adjudicated incompetent, service must be on
BOTH minor/incompetent person and a guardian
34
Publication only satisfies service if
Claimants cannot be located after a diligent effort has been made to locate them and serve personally
35
Defendant's rights to waive service
30 days to respond to request to waive summons, if accepts 60 days to file response. Otherwise must respond in 21 days + pay costs associated with service
36
Preliminary injunctions require
(1) Notice to the defendant
(2) Hearing on whether injunction should be granted
Note: rarely granted must:
(1) show irreparable harm absent relief
(2) show likely to succeed on the merits
(3) show monetary damages inadequate
(4) balance the equity of the non-moving party
(4) show injunction in public's best interest
37
Objections to venue must be raised
at the first opportunity to do so (either pre-answer motion to dismiss or within D's answer)
38
Federal Venue is proper where
(1) Any D resides so long as ALL defendant's reside in same state, OR
(2) Where claim arose (where a substantial part of the events or omissions arose)
(3) A substantial part of property at issue is located
Note: Catch-all (if none of the above apply) is venue is proper where D is subject to PJ
39
Case brought in district with proper venue may
be transferred for convenience to another venue
Note: if transferred, law of transferor forum controls
40
Case brought in district without proper venue may be
(1) Dismissed, or
(2) Transferred to district with proper venue in the interests of justice
Note: if transferred, law of transferee forum controls
41
Under Erie, in a diversity case a federal court
applies federal procedural law and state substantive law
Procedural law: does not abridge, modify, or enlarge a substantive right (e.g. federal service of process rules in federal court)
Note: If unclear whether substantive and no governing statute / codified federal rule, balancing test by judge and MAY apply federal common law
42
The two "twin aims" of Erie
(1) Avoid forum shopping
(2) Avoid inequitable administration of justice
43
State substantive law for Erie purposes includes
(1) Rules that govern conduct (e.g. required elements of a claim and defenses to a claim)
(2) Statutes of Limitations
(3) Burdens on state claims or defenses (e.g. evidentiary privileges)
(4) State Choice of Law rules
44
If the choice of procedure would be outcome determinative, the federal court should apply
State law to prevent forum shopping
45
The role of the jury in federal court
is entirely controlled by federal law
46
Federal district courts follow state law by
(1) Following precedent of state supreme court
(2) Predict state supreme court's ruling if no precedent exists
(3) Give respectful attention to decisions of lower state courts (not binding)
47
3 types of pleadings
Complaint, Answer, Reply
48
Requirements of notice pleading
(1) Fair notice of pleader's claim
(2) Short and plain statement of the claim showing the pleader is entitled to relief
49
Requirements of a Complaint
(1) Short and plain statement of court's SMJ
(2) Short and plain statement showing claimant is entitled to relief
(3) Claim for relief sought by pleader
(4) Attorney's address, email, phone number, signature
50
Types of claims which require special pleading
(1) Fraud or Mistake
(2) Claims for special damages
(3) Condition precedent not being satisfied
(Must be plead with particularity)
51
Two-Step Inquiry post Twombly & Iqbal
(1) Identify allegations that are "conclusory" or "mere legal conclusion"
(2) Looking at remaining factual allegations and ask whether they add up to "Plausible" case for recovery
TLDR: Do allegations state plausible case for recovery? Plausible = somewhere between probable and conceivable
52
12(b) Motions to Dismiss include
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper Venue
(4) Failure to state a claim
(5) Failure to join a necessary party
(6) Forum non conveniens
(2) and (3) (in addition to insufficient service of process) must be raised at earliest opportunity
Note: When considering a motion to dismiss for failure to state a claim, the court must (1) treat all well-pleaded facts in the complaint as true and (2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant
53
Motion for judgement on the pleadings
Parties agree on the facts, differ on the law
54
Motions to strike
Used to delete from a pleading scandalous or prejudicial matters not relevant, or used to strike invalid defenses
55
Answers must
(1) Respond to any form of complaint
(2) Contain Responses (admissions and denials)
(3) Raise affirmative defenses
(4) Raise compulsory Counter claims
Otherwise, these items will be waived
56
Affirmative Defenses in responses include
assumption of the risk, contributory negligence, fraud, duress, release, SoF, SoL
57
Answers are due within
21 days from service of complaint (60 if waived service)
OR
14 days after court’s notice to deny 12(b) motion to dismiss
58
Amendments to pleadings may be done
(1) Once as of right (within 21 days), and
(2) Sought from court & freely granted (unless it would result in undue prejudice)
59
An amendment relates back to date of original filing if
it concerns the same conduct, transaction, or occurrence as the original pleading
60
An amendment to add a party may be allowed (and relate back) when
(1) it concerns the same conduct, transaction, or occurrence as the original pleading,
(2) defendant received notice of action within 90 days of original complaint, and
(3) the party being added must have known or had reason to know that the action should have been brought against them absent a mistake
61
Pleadings and other documents must be certified, meaning they are
signed by an attorney of record certifying there is a factual and legal bases for the filing
62
Permissive joinder of parties is allowed if
claims arise out of the same transaction or occurrence and there is common question of law or fact
63
A party is necessary in the context of compulsory joinder when
(1) Complete relief cannot be accorded absent the party
(2) The necessary party has an interest in the subject of the litigation which will be impeded by the current litigation
(3) There is substantial risk of double or inconsistent liability imposed on others if party is not brought
(4) There may exist prejudice to existing parties
64
Feasibility of joining a necessary party requires
(1) Valid SMJ (joinder won't destroy complete diversity)
(2) Valid PJ over additional party (includes bulge provision)
65
If a necessary party cannot be joined the court may
(1) Continue without necessary party, OR
(2) Dismiss the whole suit (necessary party is indispensable)
66
Two types of intervention
(1) Intervention as of Right
(2) Permissive intervention (common question of law or fact, at court's discretion to allow)
BOTH require reasonable promptness and neither may be added based on supplemental jx
67
The special provisions of Statutory Interpleader are
(1) Special jx amount (only $500)
(2) Minimal diversity for SMJ (any 2 claimants are different)
(3) Venue is proper in any district where any claimant resides
(4) Nationwide service of process
68
Impleader (bringing in 3rd party defendant) is most often seen with
(1) Indemnification contracts
(2) Contribution among joint tortfeasors
Note: such joinder is permissive and NOT required
69
Prerequisites of a Class Action
(1) Numerosity
(2) Commonality among question of law or fact
(3) Typicality of claims by class representatives
(4) Adequacy of representation
(Dismissal or settlement of Class Action requires judicial approval)
Appeal regarding certification / rejection of a class must be done within 14 days
70
Scope of allowed Discovery
Anything that might be admissible at trial or something which might lead to something admissible
71
Work Product Rule protects
(1) Documents and Things
(2) Prepared in anticipation of litigation or for trial
(3) By or for another party or the party's representative
72
The work product rule creates
qualified immunity (may be overcome if party shows need and that it cannot obtain the evidence elsewhere and would be substantially prejudiced if not allowed to access)
73
Six discovery devices
(1) Oral depositions
(2) Written depositions
(3) Interrogatories (may respond with business records)
(4) Discovery and Inspection of documents and land (described with particularity)
(5) Physical and Mental examinations (against party when in case or controversy and in good cause)
(6) Request for admission (failure to respond within 30 days = admission)
Note: Only (1) and (2) may be used against non-parties
74
Admissions are binding in litigation but have
no preclusive effect
75
3 instances which warrant complete default and subsequent enforcement sanctions
(1) Failure to attend own deposition
(2) Failure to respond to interrogatories
(3) Failure to respond to a request for documents or things
76
Voluntary dismissal
ordinary without prejudice
P has right to voluntary dismissal once at a time prior to D's answer or MSJ (otherwise must seek leave (file a motion) of the court)
77
Involuntary dismissal
typically with prejudice (except if for lack of jx, improper venue, or failure to join indispensable party)
78
Standard for Motion for Summary Judgement
No genuine dispute as to any material fact and moving party is entitled to judgment as a matter of law
Based on sworn statements based on personal knowledge
(no genuine dispute = no reasonable jury could find for the non-moving party)
May be made at any time up until 30 days after close of discovery
79
Elements of Trial by Jury
(1) Made by either party 14 days after service of last pleading or 12(b) motion
(2) Min 6 max 12 jurors
(3) Parties may request specific instructions of jury (objections must be timely and on record)
(4) Unless otherwise stipulated verdicts must be unanimous
80
Standard for Judgement as a Matter of Law (JMOL)
Viewing evidence in light most favorable to the non-moving party, the evidence cannot support a verdict for the other party, and the moving party is therefore entitled to a judgement as a matter of law
Note: Cannot turn on the credibility of a witness
81
Elements of renewed motion for judgement as a matter of law
Evidence cannot support jury's verdict and the moving party is therefore entitled to a judgement as a matter of law (must be made within 28 days of judgement, and prior JMOL is required to have been raised)
82
Elements for a Motion for a New Trial
(1) No later than 28 days post entry of judgement
(2) Granted in sound discretion for reasons such as legal errors, newly discovered evidence, prejudicial misconduct, prejudicial trial error (erroneous evidentiary ruling) and verdict is against the great weight of evidence either in substance of verdict or amount of damages
83
Interlocutory orders that are immediately appealable are
(1) Any order granting or modifying an injunction
(2) Any order that changes or affects possession of property
Note: Must be brought within 30 days
84
Standard for granting discretionary interlocutory review
(1) Appealable with leave of courts (BOTH trial and appellate courts must agree)
(2) Trial court certifies that the issue involves a controlling question of law with substantial grounds for difference of opinion, AND immediate appeal may materially advance termination of litigation
85
Standards of Review upon Appeal
Question of Law (includes jury instructions): De Novo
Findings of Fact: Clearly erroneous (affirm if supported by substantial evidence)
Matters of discretion: Abuse of discretion
Full Faith & Credit: Rendering court MUST have had jurisdiction
Note: Motions of appeal must be filed within 30 days after final judgement
86
Requirements for Claim Preclusion (Res Judicata)
(1) There was a final judgement on the merits
(2) The second suit must be between the same parties or their successors in interest
(3) The second suit must involve the same claim or cause of action
87
Question to ask when assessing for Claim Preclusion
Should this have been raised in the first suit?
88
Requirements for Issue Preclusion
(1) Same issue of fact must arise in two suits
(2) That issue must have been actually and necessarily decided in the first suit, by a valid and binding judgement, and
(3) The party being precluded must have been a first party in the suit
Note: Only applies to issues actually litigated (e.g. not default judgements)
89
When there is no requirement for mutuality of estoppel, how can issue preclusion be used?
Defendants may use issue preclusion against a plaintiff if the plaintiff had an opportunity to litigate the issue against another defendant and lost
90
A default judgement may be entered by the clerk of the court unless
(1) Defendant has appeared
(2) Defendant is legally incompetent or a minor
(3) P's claim is not for a sum certain or a sum that can be made certain by calculation
(4) Plaintiff failed to include an affidavit establishing the amount due
91
A court must on request, or may on its own initiative, poll the jurors individually after a verdict is returned but before a jury is discharged. If the poll reveals the verdict is not unanimous, the court can
(1) direct the jury to deliberate further, or
(2) order a new trial
92
Failure to file proof of service with the court
does not affect validity of service
93
The abuse-of-discretion standard of appellate review applies to
a trial court's discretionary rulings—e.g., whether to admit evidence (reversed only if arbitrary or unreasonable)
94
Spoliation of evidence is
the negligent or intentional destruction or significant alteration of evidence required for discovery
95
A party must preserve evidence/records/electronic information if
(1) litigation is anticipated / foreseeable
(2) within the ordinary course of business, such information would be deleted or destroyed
96
Sanctions are authorized for spoliation of evidence only if
the information cannot be restored or replaced by additional discovery
97
In determining sanctions for spoliation of evidence, the court should consider
(1) the prejudice to another party, and
(2) the intent of the party that failed to preserve the evidence
98
When retrieval of destroyed information is possible, even if typically considered inaccessible due to the cost of retrieval, a court may
order it and assign the costs to the party who destroyed the evidence
99
If the court finds that the sanctioned party acted with the purpose of depriving the other party of evidence to use in litigation, the court may order sanctions including
(1) a presumption that the destroyed or list information was unfavorable to the sanctioned party
(2) a jury instruction that it may or it must presume the information was unfavorable to the party, or
(3) an entry of a default judgement against the party.
100
Federal courts sitting in diversity jx CANNOT exercise jurisdiction over
probate matters and domestic relations
101
For foreign defendants, venue is proper
in any federal district
102
Any absent defendant who does not personally receive notice may
file a motion to set aside the judgment at any time within one year of the final judgment
103
Under the final-judgment rule, a federal appellate court generally has no jurisdiction to hear an appeal until
the district court has issued a final judgment—i.e., a decision that fully resolves the dispute on the merits.
However, the interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment.
104
A district court can correct a mistake in a judgement order or other part of the record if
Done prior to an appeal being docketed.
Otherwise, after an appeal has been docketed a district court may only do so with the appellate court's leave
105
Damages related allegations will not be admitted by
the defendant's failure to deny them in an answer
106
A federal court may impose reasonable (pre-trial) sanctions on any attorney or party who
(1) failed to attend a pretrial conference
(2) did not participate in good faith, or was substantially unprepared to participate, in the conference, or
(3) failed to obey a pretrial order
107
Concerning allegations in a defendant's response to a complaint, a plaintiff need not
respond to the allegations unless ordered by the court (they are deemed denied)
108
When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. However, if this express determination is not made
any court order that disposes of those claims or parties is not immediately appealable.
109
A plaintiff may assert a third-party claim against a third-party defendant if
(1) that claim arises out of the same transaction or occurrence as the plaintiff's claim against the defendant in the original complaint and
(2) the third-party claim satisfies original subject-matter jurisdiction
110
Sanction proceedings can be initiated against an attorney by
(1) a party's motion or
(2) a court's own initiative—so long as the judge issues an order to show cause
111
An appellate court may hear an appeal from a district court order that grants or denies class action certification. If the appellate court permits the appeal, the district court proceedings
are stayed pending the appeal only when ordered by the district court OR the appellate court
112
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
(Note: From S. Ct - forum selection clauses should be given "controlling weight in all but the most exceptional cases)
113
If a plaintiff could easily have joined in the earlier action, a trial judge may
not allow use of offensive collateral estoppel (issue preclusion)
114
Individuals and organizations in foreign countries can be served with process by
any internationally agreed method of service that is reasonably calculated to give notice (if does not exist, certified mail is OK)
115
Intervention as of right arises when
(1) Nonparty has an interest in the subject matter of the action
(2) The action may affect their interest, and
(3) The nonparty's interest is not adequately represented by the existing parties
116
Permissive intervention is allowed if
(1) a non-party is granted a conditional right under a federal statute, or
(2) non-party has a claim or defense related to the original cause of action
117
If a federal court rules that the amount of damages awarded was inadequate, it may order a new trial but may not
impose an increase in the amount of damages (i.e., additur) (e.g. offer the D the chance to pay an increased amount to avoid a new trial)
NOTE: ALL damages must come from a JURY
118
The right to a jury trial is given for
legal claims (involving monetary remedies) but NOT equitable claims (involving injunctive relief)
119
Once the 4 requirements for a Class Action are met, the class must still be one of three types of class actions:
(1) Prejudicial risk (separate actions would create a risk of inconsistent decisions)
(2) Common question (of law or fact predominates and class action is best method)
(3) Final equitable relief
120
A party cannot file a motion for sanctions until
21 days after serving that motion on the alleged violator (Safe-Harbor rule gives a violator time to correct the violation)
121
Types of Jury Verdicts
General, Special, General Verdict with Special interrogatories
122
If the judge selects a general verdict with special interrogatories and the jury's answers are inconsistent with the verdict, the judge must
(1) order a new trial
(2) direct the jury to further consider its answers and verdict, OR
(3) Disregard the jury's verdict and enter a judgement consistent with the answers
123
Under the Federal Tort Claims Act, venue is proper only in
the judicial district where the plaintiff resides OR where the act or omission complained of occurred
124
Foreign governments may be sued
(1) where substantial events occurred or property is located, OR
(2) Federal district court of Washington DC
125
A party may make a request for jury instructions after the close of evidence if
(1) it concerns issues that could not reasonably have been anticipated by the deadline, or
(2) with the court's permission
126
Special venue rules apply when an officer or employee is sued in their official capacity or under color of legal authority, meaning venue is proper where
(1) any defendant resides
(2) a substantial portion of the events giving rise to the suit occurred, or
(3) where the plaintiff resides if no real property is involved
127
In an action involving multiple plaintiffs or defendants, the court may consider them as a
single party entitled to 3 preemptory challenges OR grant more than 3 peremptory challenges and permit them to be exercised separately or jointly
128
Forum non Conveniens allows a court to
dismiss or stay a case, but not TRANSFER
Note: Done if a foreign court / alternate court SYSTEM is BETTER SUITED to hear the case
129
When a jury's answers and verdict are inconsistent, the judge must
(1) order a new trial,
(2) direct the jury to further consider its answers and verdict (re-submit case to the jury), or
(3) disregard the jury's verdict and enter a judgement consistent with the answers
130
A party can file a motion to alter or amend a final judgement (e.g. summary judgment) within
28 days after entry of that judgment
Can be based on several grounds including:
(1) intervening change in controlling law,
(2) judgement based on manifest error of law or fact,
(3) necessary to prevent manifest injustice,
(4) discovery of new evidence that was unavailable at trial
131
Only defendants listed in the plaintiff's complaint have the power to remove a case from state to federal court, meaning
a party joined to the suit through a counter-claim is not considered a defendant for removal purposes
132
A federal court sitting in diversity generally must apply state substantive law, unless there is a uniquely federal interest in which
the court would then apply federal common law if the state law significantly conflicts with federal common law
133
A legal representative of a decedent's estate will be deemed
a citizen of the same state as the decedent
134
In granting a new trial, the court must
specify the reasons in its order
135
Allegations of fraud must be pleaded with
particularity
136
In determining the claim-preclusive effect of a prior federal judgment in an action based on diversity jurisdiction, federal common law requires that
the law of the state in which the federal court rendered its judgment be applied, unless the state law is incompatible with federal interests
137
A party must first file a motion to compel disclosure of relevant discovery documents which otherwise automatically must be disclosed before it can
obtain sanctions under Rule 37
138
A TRO is not an appealable interlocutory order unless it is
extended beyond the period permitted (generally 14 days)
139
If the original claim is based in Federal Question, any additional non-federal claims must
satisfy diversity or arise from the same case or controversy to meet supplemental jurisdiction
140
If a pleading contains an insufficient defense, a party must
move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading
141
When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must
treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion
(compare with the normal - courts considering a dismissal for failure to state a claim upon which relief can be granted may only consider the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice)
142
Defensive non-mutual collateral estoppel allows
A new non-party defendant to assert a prior judgement a against P who lost original case
143
Offensive non-mutual collateral estoppel allows
A new non-party plaintiff to assert a prior judgement against a D who lost original case
Note: Determined based on fairness to D (e.g. did P have opportunity to join first suit)
144
The court may modify a pre-trial order that formulates a plan for trial only if
it is done to prevent manifest injustice (party must object and move to modify)
145
When ruling on the constitutionality of punitive damages, appellate courts apply
a de novo standard of review
punitive damages will be excessive if the ratio of punitive to compensatory damages is greater than 9:1
146
In order for a waiver of service to be valid, the wavier must
(1) state the name of the court and the date the request was sent,
(2) Contain a copy of the complaint, and
(3) Contain 2 copies of the wavier form and a pre-paid means to return the signed form
147
An order for a preliminary injunction must contain
(1) the reasons why it was issued
(2) a reasonable description of the prohibited or commanded acts, and
(3) its specific terms
148
Unincorporated associations (e.g. partnerships, limited liability companies) are domiciled
in EVERY state where its partners or members are domiciled
149
With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, such as a statute, then
the federal law will be applied, even if a state rule or statute is in conflict
(Note: Class actions can be maintained in federal court despite a state law barring such class actions)
150
A party may file a motion within a reasonable time to obtain relief from a judgement that has
(1) been satisfied, released, or discharged
(2) is based on an earlier judgement that has been reversed or vacated, or
(3) will violate equity if applied prospectively
(Note: need not be within 12 months after final judgment)
151
If a party personally appears at a hearing for a default judgement, notice of
7 days is required before the hearing
152
A defendant must be served within
90 days of the plaintiff filing the complaint
Note: Service cannot be done by the party bringing the suit
153
The collateral-order doctrine allows an immediate appeal from an interlocutory order that
(1) conclusively resolves an important issue that
(2) is separate from the merits of the claim and
(3) cannot be effectively reviewed on appeal from a final judgment—e.g., an order denying a claim of governmental immunity.
TLDR: Collateral to main suit and too important to require differing to appellate review
154
Stateless persons (non-citizens present in the US but citizens of a foreign country or US citizens domiciled in a foreign country) cannot get into federal court by
Diversity jurisdiction (there’s no diversity of citizenship)
155
SCOTUS has exclusive authority to hear disputes between
two or more states
156
A party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order by unilaterally filing a notice of dismissal
(1) before a responsive pleading is served (e.g. answer) or
(2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial
157
Absent specific personal jurisdiction, a federal court may acquire personal jurisdiction over a defendant when
(1) plaintiff asserts a federal law claim
(2) defendant is not subject to PJ in any state court, and
(3) defendant has minimum contacts with the US as a whole
158
After a pleading has been amended, a response is due by
the later of the following deadlines:
(1) time remaining to respond to the original pleading (generally within 21 days of service of process) OR
(2) 14 days after service of the amended pleading
159
In "prejudicial risk" and "final equitable relief" class actions, a court may - but is not required to -
provide notice to class members (members do not have a right to opt out and file separate suits)
160
Pre-trial disclosures must be made
30 days before trial
161
Testimony of an expert witness must be disclosed
at least 90 days before date set for trial
162
A remand order is generally not
reviewable on appeal or otherwise
Exception: Remand order in a class action if application for review is made to court of appeals within 10 days after entry of order
163
In calculating AiC for diversity cases, punitive damages may
be permitted as part of the sum sought
164
Remanding to state court is only allowable if
the suit originated in state court (if originates in federal court, remand isn't possible - must dismiss)
165
If a federal court has original subject matter jurisdiction over a claim and is able to exercise supplemental jurisdiction over a claim which shares a common nucleus of operative fact, if that original claim is dismissed a court may
dismiss the claim joined by supplemental jurisdiction OR it may continue to hear the claim nonetheless
Note: Loss of a valid Federal Q or diversity claim doesn't automatically prohibit a supplemental state claim from being heard
166
In granting a TRO, the court must include
(1) The reasons why it was granted
(2) A reasonable description of prohibited or commanded acts which must be made without reference to another document, and
(3) Specific terms (e.g. persons bound, penalties for non-compliance)
167
To challenge jury instructions on appeal, a party must generally
(1) Have objected to that error at trial, OR
(2) review on appeal for plain error (obvious error which affected a substantial right of a party)
168
When a federal party (government, agency, officer) is suit to a case, an appeal may be made within
60 days (instead of usual 30)
169
Motions to appeal must be filed with
the clerk of the DISTRICT court
170
In response to a motion for summary judgement, the non-movant may request the court postpone the motion until
additional discovery can take place (include affidavit or declaration explaining why it is needed)
171
When the United States is a defendant in a civil action, service must be made on
(1) the U.S. Attorney General as well as
(2) the U.S. attorney for the district in which the action has been filed
172
The court is not required to state findings or conclusions when
ruling on a motion under Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion
173
Under Rule 11(a), every pleading, written motion, and other paper filed with the court must be
signed by at least one attorney of record, or by a party personally if unrepresented
174
Under Rule 11(b), by presenting to the court a pleading, written motion, or other paper, the signing attorney or unrepresented party certifies that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances that
(1) the paper is not being presented for any improper purpose;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
175
A motion for sanctions must be made
separately from any other motion and must describe the specific conduct alleged to violate Rule 11
176
A motion for sanctions must first
be served on the opposing party under Rule 5, which gives the opposing party 21 days to withdraw or correct the challenged pleading
NOTE: If this 21-day “safe harbor” period passes, and the opposing party fails to correct the pleading, the party seeking sanctions may file the motion with the court
177
After notice and a reasonable opportunity to respond to a motion to correct or withdraw a challenged pleading, the court may, in its discretion,
impose sanctions on attorneys, law firms, and parties for violations of Rule 11
178
Sanctions for violating rule 11 are limited to
What will deter the misconduct in the future and may include non-monetary directives, or an order to pay a penalty into court
Sanctions may also take the form of paying reasonable attorneys fees and other costs directly resulting from the violation
179
Absent exceptional circumstances, a law firm must be held jointly responsible for
a violation committed by its partner, associate, or employee
Note: A represented party rarely is ordered to pay sanctions, unless the represented party who knew, or should have known that the claim he asked his lawyer to pursue was legally and factually baseless.
180
Facts known and opinions held by an expert not expected to testify at trial are
privileged and not discoverable unless
(1) the information relates to a court-ordered examination or
(2) exceptional circumstances make it impracticable to obtain that information by other means
181
A ruling on a motion for a new trial is generally discretionary and reviewed on appeal for
abuse of discretion
Note: Compare with constitutional grounds (e.g. excessive punitive damages) which are reviewed de novo
182
A conference to develop a discovery plan must be held
as soon as practicable but AT LEAST 21 days before a scheduling conference is held or a judge's scheduling order is due
183
Potential tortfeasors facing joint and several liability are not
required parties (because plaintiff can recover entire amount from either party)
184
When a party timely files a notice of removal with the appropriate federal district court, the action is
automatically transferred to federal court (though may later be remanded back to state court if the federal court determines it lacks SMJ or D didn't follow proper procedure)
185
Supplemental pleadings are
pleadings used to set forth a transaction, occurrence, or event that arose AFTER the pleading to be supplemented was filed
Note: Requires leave of the court
186
Removal to federal court, based on diversity, is allowed within 1 year unless
plaintiff acted in bad faith
187
A plaintiff must move to remand back to state court within
30 days UNLESS based on lack of SMJ in which case can remand at any time
188
Witness credibility, determined by a judge during a bench trial, is considered
a finding of fact and is reviewed under the clear error standard (high deference to trial court)
189
In a bench trial, a judge may enter a partial finding against the nonmovant after
the nonmovant has FULLY been heard (may consider credibility of witnesses - as opposed to JMOL which does not allow that)
190
Protective orders are court orders which
are issued to protect a party or other persons from annoyance, undue embarrassment or undue burden.
Court will grant if (1) movant shows good cause, and (2) certifies that they conferred or attempted to confer in good faith with the opposing party
191
A third party complaint must be based on
derivative liability - that the non-party is liable to the DEFENDANT for all or part of the plaintiff's claim
(e.g. NOT that it asserts a non-party is liable to the plaintiff)
192
A party's initial disclosures must include all documents, electronically stored information, and tangible things in a party's possession which
the party may use to support ITS claims or defenses (but NOT those of the opposing party)
193
A special verdict entails
(1) the jury answers questions in writing on a specified factual issue and
(2) the judge applies the law and enters a judgement consistent with those answers
194
A general verdict entails
the jury finds in favor of and awards damages to a particular party
195
A general verdict with answers entails
the jury finds in favor of and awards damages to a particular party AND jury answers questions on specified factual issues
196
In determining whether state or federal law governs concerning the effects of a judgement on res judicata, courts apply
the claim preclusion law of the court in which the claim was decided
197
Pre-trial disclosures must be made within __ and objected to within __
30 days of trial and objected to within 14 days of disclosure
198
If a party sues a federal officer in their individual capacity for actions related to their government duties, service must be done
(1) in accordance with rules for serving process on an individual, and
(2) service must be done on the US government
IF: plaintiff fails to serve US government, court must allow a reasonable time to cure that failure
199
Transfer of venue is procedural and thus
governed by federal law
200
A non-movant may defeat summary judgment if they
show specific disputed facts through affidavits, declarations, discovery, or other materials containing admissible evidence
NOTE: CANNOT defeat the motion by relying on allegations in the pleadings
201
A TRO is created, and good for 14 days absent good cause, if the moving party can show
(1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and
(2) the efforts made at giving notice and the reason why notice should not be required.
Note: Generally bond must be posted as damages in the event the party was wrongfully restrained
202
A court may decline to exercise supplemental jurisdiction if
(1) the supplemental claim raises a novel or complex issue of state law;
(2) the supplemental claim substantially predominates over the claims within original federal jurisdiction;
(3) all of the claims within the court’s original jurisdiction have been dismissed; or
(4) in exceptional circumstances, if there are other compelling reasons for declining jurisdiction
203
Under Rule 8(a) (FRCP rules for pleadings) , a complaint (or any pleading in which a claim is made) must include
a short and plain statement of the claim establishing entitlement to relief
204
Rule 8(a) of FRCP applies
to any claim brought in federal court and will prevail over any state-law pleading rules
205
A prosecutor is absolutely immune from civil liability for damages resulting from
his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction
206
A trial judge's decision to grant a summary judgement motion is
a legal ruling (therefore subject to de novo review on appeal)
207
A federal court may move to set aside a judgment at anytime to
(1) entertain an independent action to relieve a party from a judgement
(2) grant relief as Congress directs in a federal statute
(3) set aside a judgement due to fraud on the court
208
A party preserves its right to a jury trial in federal court if it
(1) demands a jury trial in state court prior to removal, or
(2) serves a jury trial demand within 14 days of filing or being served with notice of removal (so long as necessary pleadings have been served before removal)
209
An order for sanctions must be
reasonable under the circumstances (punishment must fit the violation)
210
Service of an answer may be done by
leaving it with a person in charge at the attorney's office (must be served on plaintiff's attorney if plaintiff has an attorney) within 21 days
Note: Answer must be filed with court clerk "within a reasonable time after" service on the other party
211
Quasi-in-rem jurisdiction (obtaining PJ over a D through property owned in a specific jx) requires
minimum contacts to exist between the defendant and the forum state before jurisdiction will apply
212
A party that fails to admit a matter (via request for admission) that is later proven true must
pay the reasonable expenses incurred in making that proof
Unless:
(1) court had sustained a prior objection to the request
(2) the admission sought was of no substantial importance
(3) the responding party reasonably believed that it would prevail on the matter
(4) another good reason existed for failure to admit (e.g. a party could not reasonably obtain the information necessary to admit whether the matter was true)
213
Prejudicial misconduct of a juror, which otherwise may warrant a new trial, may be deemed harmless if
(1) the judge admonishes the jury to disregard the conduct, or
(2) the conduct does not affect a party's substantial rights
214
When an action is dismissed due to the failure to timely serve process, the dismissal is
without prejudice
215
There is a right to a jury trial for offenses that carry an authorized sentence of
more than six months, regardless of the actual penalty imposed
216
Judicial notice may be taken at
any stage of the proceeding (including on appeal)
217
Exceptions to the final judgment rule (what may be immediately appealable?)
Injunctions
Certifications by district courts
Class action certification
Appointment of receiver
Admiralty cases
Collateral-Order doctrine
Bankruptcy cases (certain orders)
Writ of Mandamus
Patent-infringement order
In Certain Circumstances An Appeal Can be Made Prematurely
218
A writ of mandamus requests that
an appellate court direct a district court to do or refrain from doing something when exceptional circumstances clearly exist and no other adequate remedy is available
Examples:
(1) Court clearly exercises unlawful jx,
(2) district court usurps another branch's power, or
(3) protect a party's 7th amendment right to jury
219
A motion for a more definite statement must
(1) specify the pleading's defects and details needed to cure these defects, and
(2) be made BEFORE filing a responsive pleading
220
If D offers to settle with P within 14 days of trial, and P rejects and then gets less favorable judgement, P must
pay costs (including attorneys fees) incurred after the offer was made
