civ pro Flashcards
(63 cards)
1
Q
fed rule civil p.12(h)(3)
A
- at any point in litigation, if a federal court determines that it lacks subject-matter jurisdiction, it must dismiss the case
- if you mess up subject matter jurisdiction, you are at risk for having your case thrown out at any point - courts take this very seriouslyfed rule civil p.12(h)(3)
2
Q
federal subject matter jurisdiction
A
originates from
Article 3, Section 2 of Constitution
- fed jurisdiction is limited to cases
- arising under fed law or involving the US or foreign states as parties
- between diverse parties or,
- involving admiralty of maritime jurisdiction
the claim must also fall within a specific provision of US statute including (4) sub catergories including federal question jurisdiction, diversity jurisdiction, 3 & 4
3
Q
28 US Code Section 1331
A
- 28 US Code Section 1331
- federal district courts “federal question jurisdiction extends to “civil actions arising under the Constitution, laws, or treaties of the United States”
- to establish federal question jurisdiction, the plaintiffs cause of action - and not the defendants defense - must arise under federal law (Mottely)
- looking to whether plaintiff cause of action is something created by law, fed statute, treaty etc,.
4
Q
(28 US 1332a)
&
1332 (c)
A
-
diversity jurisdiction (28 US 1332a)
- federal courts diversity jurisdiction entends to civil actions
- amount in controversy exceeds $75,000
- that are between
- citizens of different states (CODS)
- citizens of a state or subjects of a foreign state or (COSSF)
- a foreign state as a plaintiff and citizens of a state or states (FSP&COS)
-
for diversity jurisdiction purposes, a person is a citizen of a U.S state if (Redner case):
- they are a citizen of a the US and
- they are domiciled within the state in question
- 28 US 1332c
- corporation is a citizen of every US state and foreign state
- where it has been incorporated and
- where it has its principal place of business
- principals place of business is “the place where a corporations officers direct, control and coordination corporations activities “nerve center”.
- corporation is a citizen of every US state and foreign state
- federal courts diversity jurisdiction entends to civil actions
5
Q
personal jurisdiction
A
- a states personal jurisdiction over a defendant is established when the defendant: (in personam)
- is domiciled within the state
- is served while present within the state
- has consented (explicitly or implicitly) to litigating in the states or
- designates an agent to accept service of legal process within state
6
Q
personal jurisdiction long arm statutes
A
-
long arm statutes (check state long arm statute to decide is ps is allowed)
- two variety
-
enumerated
- creates different categories of defendants allowed to be sued
-
constitutional limits
- if constitution allows it, they will exercise jurisdiction
-
enumerated
- two variety
7
Q
court cases law - constitutional limits on personal jurisdiction
A
- general personal jurisdiction
- can bring any claim because they are at home in that state
- the power to adjudicate any claim - over defendants who are “essentially at home” in the state (DCP)
- defendants domiciled in state
- corporate defendants incorporated in state
- corporate defendant whose principal place of business is in the state
- specific personal jurisdiction-the power to adjudicate claims related to the defendants contacts with the courts territory over defendants who purposely avail themselves of the privilege of conducting activities in the state
8
Q
USC 1391(b)
A
28 USC 1391(b)
venue is proper for federal action if it is filed in:
- a judicial district in which a **defendants resides, if all defendants are residents of the State** in which the district is located - a judicial district which a **substantial part of events** … giving rise to the claim occurred, or a **substantial part of property** that is the subject of the action is situated or - if none of the above exist, “any judicial district in which any defendants is subject to the courts **personal jurisdiction**”
9
Q
1406(a)
A
1406(a)
if venue in a federal district court is “wrong” under the federal venue statutes
then the court shall
- dismiss the case or
- if its in the “interest of justice” then it shall tranfer the case to a federal district coirt where the case could have been brought
10
Q
1404(a)
A
1404 (a) → no option to dismiss
governs venue transfers for when venue is improper but not necesarrily wrong:
if its in the “interest of justice)
then a federal district court shall transfer case
- to federal district court where case could have been brought
- to any federal district court which all parties have consented
11
Q
1631
A
if a fed court lacks jurisdiction and it is in the interest of justice then the court shall transfer the case to another fed court
to determine whether a transfer is in the “interest of justice” for either 1404a or the doctrine of forum non conveiens,
a fed court evaluaties
- private interest factors (eg access to evidence an witness)
- public interest factors (court congestion, local interest, whether a court is at home with the applicable law)
12
Q
FORUM Selection Clause: if there us a valid forum-selection clause
A
FORUM Selection Clause: if there us a valid forum-selection clause
then for purposes of 1404(a) or the doctrine of non conveiens
in all but the most unusal cases, the interest of justice is served by holdng parties to forum-selection clause
13
Q
fed r civ pro 8(a) → important!!
A
fed r civ pro 8(a) → important!!
a claim for relief must contain
- a jurisdictional statement (why this case has jurisdiction)
- statement of claim and
- demand for relief
14
Q
fed rule civ pr 9(b)
A
fed rule civ pr 9(b)
- a claim for relief alleging fraud or mistake “must state with particularity the circumstances constituting fraud or mistake”.
15
Q
fed r civ p 12(a)(1)
A
fed r civ p 12(a)(1)
a defendant generally must file an answer within 21 days after being served with the complaint,
except that:
- they must file their answer within 60 days after receiving the complaint if they waive service, and
- if they file a rule 12 motion, then generally must file their answers within 14days after court denies the motion
16
Q
rule 11 (truthfulness in pleadings)
A
rule 11 (truthfulness in pleadings)
every paper filed in the federal civil case must be signed and each signature certifies that
- filing is “not being presented for an improper purpose”
- the filings legal contentions are “warranted under existing law or by a non-frivolous
- the filing factual contentions “have evidentiary support or will likely have evidentiary support
before filing a rule 11 sanction motions with the court; the movant must serve the motion on the other parties and wait 21 days to allow the challenged filing to be withdrawn or corrected (safe harbor period)
17
Q
service of process fed civ p. 4
A
service of process fed civ p. 4
-
to serve defendant , a summons must be delivered with a copy of the complaint by: (FDDL)
- following the state law applicable int he state where the district court sits
- Delivering the summons and complaint to the defendant personally
- leaving the summons and complaint at the defendants address with someone “of suitable age and discretion” or
- delivering the summons and complaint to the defendants agent for recieving service of process
- within 90 days of complaint being filed
18
Q
rule 20 a (1)
A
rule 20a (1)
-
plaintiffs may join a civil action if
- they assert rights arising out of the same transaction or occurrance and
- their claims share a common question of law or fact
19
Q
rule 20 (a) (2)
A
- rule 20 (a) (2) → connects defendants
-
multiple defendants may be joined in a civil action if
- rights asserted against group of defendants arise out of the same transaction or occurrence
- claims must share a common question of law or fact
20
Q
fed rule civ procedure 18(a)
A
if a plaintiff has properly asserted a claim against a defendant, then the plaintiff may join as many claims as it has against the defendant (fed r civ p 18(a) → connects claims
- doesn’t need the same relatedness and don’t need to share a common question of law or fact
21
Q
rule 12 (b)
A
motion to dismiss
before responding to a pleading a party may instead motion to dismiss under Rule 12)b)
- lack of subject matter
- lack of personal jurisdiction
- Insufficient process (wrong papers)
- Insufficient service of process
- failure to state a claim upon which relief can be gratned or
- failure to join as necessary
FRCP 12(h)1
A defendant must assert the defenses of lack of personal
jurisdiction, improper venue, insufficient process, and
insufficient service of process before answering the complaint or its waived
FRCP 12(h)2
at any point in trial, a defendant may assert failure to state a claim upon which relief can be granted or failure to join a required party
FRCP 12(h)3
at any point in litigation, if a federal court determines that it lacks subject-matter jurisdiction, it must dismiss the case
22
Q
fed r civ 12(h) (2)
A
at any point in trial, a defendant may assert failure to state a claim upon which relief can be granted or failure to join a required party fed r civ p.12(h)(2)
23
Q
fed civ p 12 (e)
A
if a complaint is vague or ambiguous, then a defendant may file a pre-answer motion for a more definitive statement fed civ p 12 (e)
- a defendants motion for a more definitive statement must be filed before it files it answers
24
Q
1367a
A
-
civil actions where federal courts have original jurisdiction (question or diversity) their supplemental jurisdiction extends to all other related claims that form part of the same case or controversy (28 USC 1367(a)**
- for supplemental jurisdiction purposes, a claim forms part of the same case of controversy as another claim if they share, a “common nucleus of operative fact” (Mine Workers v. Gibbs)
25
notice of suit
due process clause limits courts exercise of jurisdiction to cases where defendants receive notice and opportunity for hearing appropriate to the nature of case
notice must be reasonably calculated to calculated to let defendants know about case and give opportunity to present objectives
26
amended pleading fed r civ p 15(a)
**amended pleading fed r civ p 15(a)**
a party may amend their pleading
- once without the courts permission
- within 21 days serving the pleading or
- within 21 day of recieving a responsive pleading or rul 12 motion or
- With the court’s permission “when justice so requires.”
27
fed r civ pr 7(a) (besides complaint and answer)
**fed r civ pr 7(a)**
besides the complaint and answer, other possible include
- a counterclaims (defendant assert a claim against plantiff) plus an answer to the counterclaim
- a crossclaim (codefendant assert a claim against a codefendant) plus an answer to the crossclaim
- third party complaint (defendant asserts a claim against a third party, plus an answer to the third-party complaint (third part responds to the defendants claim) and
- reply to an answer (if court orders it)
28
FRCP 8(b)
- an answer must
- admit, deny, or state that the part lacks knowledge or information to admit or deny every single allegation asserted against it by the opposing party and
- state all defenses to each claim asserted against it, including all avoidance and affirmative defense
29
1446 (remove a case to fed court)
- **to remove a case in fed court (1446)**
- defendant must
- file a “notice of removal” in the appropriate federal district court within 30 days after receiving the notice that the case is removable, and
- promptly give written notice to all adverse parties and the state courts
30
1441(a)
removal jurisdiction
- **if** a case is brought in state court
- **and** federal district court would have original jurisdiction over a claim in the case,
- **then** a defendant may remove the case to the federal district court corresponding to where the court is **28 USC 1441(a)***
31
zublanke
once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relavent documents (zubulanke)
32
37(e)
if a party fails to preserve relevant information, then the court may order measures to cure the prejudice to another party
33
FRCP 26(a)
in a fed case, parties must closes information without awaiting discovery request
- witness that may be used
- evidence that may be used to support disclosing party’s case
- calculated damages and supporting documents
- applicable insurances agreements
34
discovery tools
deposition
- questioning of witness
interrogotories
- open ended questions; broader questions
- document based questions
- request for production
- physical and mental examinations (need court order*) and
- request for admission
35
rule civ p 26(b)(1)
in general parties may obtain discovery “regarding any (1)non-privilege matter that is (2) relevant, if the discovery is (3) proportional to the needs of the case
36
fed r evid 501
in general attorney client privilege protects a communication from disclosure
- confidential information
- involving legal advice
- between clients and counsel
37
rule 26b(3)
- documents and things prepared for litigation are not discoverable **unless**
- they are within the scope of discoverable info **and**
- another party has substantial need for the materials and cannot obtain in any other way
- in which case, **a court must still protect** an attorneys mental impressions, from disclosure
38
**rule 26b (5)**
- to claim privlege or protection over otherwise discoverable information a party must:
- **expressly claim privlege or protection, and**
- describe the nature of the information withheld
39
37(a) motion to compel
**if a party has sought unsuccessfully to obtain disclosure** or discovery and has conferred in **good faith with the nondisclosing party** to obtain the information without court action,
**then** the party may move to compel disclosure or discovery
40
discovery sanctions
- provides incomplete or incorrect disclosures
- provides improper discovery
- fails to comply with discovery order
- fails to make mandatory
disclosures or to supplement mandatory disclosures
- fails to accurately responds to request for admission or
- generally fails to cooperate in discovery,
- then the court may order appropriate sanctions
41
15d
party may supplement pleading with a transaction, occurance or event that happened after the date of an earlier pleading if:
- they seek court permission by motion
- provide reasonable notice
- court gives permission to supplement on just terms
42
FRCP 4(k)
a federal court can exercise the same PJ as the court of general jurisdiction in the state where the district court is located (fed rule civ pro 4k)
43
FRCP 12(c)
after all pleadings (complaint and answer) have been filed, any party may move for judgement on pleading
a substantive judgment of liability or lack thereof, granted on the basis of the parties' allegations/admissions in the complaint, answer, and/or other pleadings.
(only takes into account the pleading, while summary judgment factors in more evidence)
44
FRCP 12(f)
if a pleading contains improper material, then a party may move to strike that material **fed r civ pr 12 (f)**
- if a pleading contains an insufficient defense or any redundant immaterial impertinent or scandalous manner, then a party may move to strike
- a motion to strike should be filed before it files its answer or within 21 days after the pleading it attacks
45
Washinton v. Trump
**TRO and Injunctions**
to obtain either a temporary restraining order or a preliminary injunction, the party seeking the injunction must establish:
- they are likely to **succeed on the merits**
- **irreparable harm** is likely with the preliminary relief
- the **balance of equities** favors the party seeking the injunction and
- an injunction is in the **public interest**
46
56a
- before trial, party may move for summary judgement on a **claim, defense, or issue**
- the court should grant SJ if construing the facts most favorable to the opposing party, **“there is no geniune dispute as to any material fact and the movant is entitled to judgement as a matter of law**
- at SJ stage, parties can assert that facts can or cannot be disputed by citing evidence admissable at trial
47
56a celotex
if a movant for SJ establishes “there is no genuine dispute as to any material fact and the movant is entitled to judgement as matter of law”, then it doesn’t matter whether the movants support s the motion with evidence or not
48
56 (matashuita case)
**to establish a “genuine dispute as to any material fact” and overcome a motion for summary judgement,**
**the non-moving party just provide more than an implausible theory; it must provide specific facts showing a genuine issue for trial**
49
56 (anderson case)
to establish whether there is a geniune dispute as to any material fact and the movant is entitled to judgement as a matter of law
the parties must make their arguments under the applicable evidentiary burden
50
FRCP 56(f)
before trial, after giving notice and an opportunity to response the court may also:
- grant summary judgement for a nonmoving party
- grant summary judgement on alternative grounds, or
- grant summary judgement on its own (sua sponte)
**fed ru civ pro 56(f)**
51
FRCP 68
if:
- a defendant serves an offer of judgment
- the plaintiff does not accept the offer within 14 days, and
- if the final judgement after trial is not more favorable (meaning less than or equal too) the offer
then the plaintiff must pay the defendants cost incurred after the offer was made
52
**28 USC 1870**
**in fed civil cases, each side is generally entitled to three premptory challenges (attorneys striking jurors)**
53
**FRCP (50)a (1)**
the court should grant judgment a matter of law if **“a reasonable jury would not have a legally suffieicent evidentiary basis to find for a party on an issue**
**FRCP (50)a (1)**
54
**FRCP 59(e), 60**
**after a judgment:**
- within 28 days, a party may move to alter or amend the judgment
- within 1 year, a party may move for relief from judgement
- at any time a party may move to correct a clerical mistake
**FRCP 59(e), 60**
55
**FRCP 61**
any error will be considered “harmless error” and not grounds for granting a new trial, setting aside a verdict, or disturbing a judgment
unless a party’s substantial rights are affected and justice requires post judgment relief
**FRCP 61**
- really hard to overturn a judgment of matter of law against trial verdict
56
**FRCP 50b, 59(a)**
**motion for a new trial**
after trial within 28 days after entry of judgment;
- any party moved for judgment as a matter of law mid-trial may renew their motion for judgment as a matter of law
- any party may move for a new trial
**FRCP 50b, 59(a)**
57
inadvertant disclosure
if a party inadvertently discloses privleged or protected information and immediatedly notifies the recieveing party, then the disclosing party has not waived privlege or protection over documents and the receiving party must prompty return or destroy
58
iqbal
to survive a motion to dismiss for failure to state a claim, a complaint must contain plausible factual allegations to support all elements of a cause of action
threadbare recital of the elements of a causae of action, supported by mere conclusory statements do not suffice.
59
request waiver of service (FRCP 4(d))
to request waiver of service in fed civil case, the plaintiff must
- notify the defendant of the case in writing
send the defendant the complaint and Rule 4 waiver form
give defendant at least 30 to return waiver
60
complaint structure
names (left)
complaint (centered in bold)
- plaintiff by and through their attorneys alleges as follows:
jurisidiction & venue
- numbered
1, 2, 3 (SJM, PJ, and Venu)
parties
- information about parties
4, 5, 6, 7 (2 for plaintiff) 2 for defendant
facts
- provide at least 4-5 sentences numbered
count 1
- 3-4 sentences numbered about what the actual tort or crime
demand for relief
not numbered
signature
61
forum of non conviens
legal doctrine that allows courts to dismiss a case when another court or jurisdiction is more appropriate for resolving the dispute, even though current court has proper jurisdiction
courts use the doctrine of non conviens when venue transfer would be in the interest of justice but the later notice forum is in a foreign country
62
FRCP 16(e)
A federal court may modify its final pretrial order “only to
prevent manifest injustice.”
63
Fed. R. Civ. P. 4(d)(2).
If a defendant fails to waive service without good cause,
then the court must require the defendant to pay for the
costs of service (and any legal action to seek payment of those
costs).
Fed. R. Civ. P. 4(d)(2).
