Civ Pro Flashcards
(25 cards)
Compulsory counterclaim
A counterclaim is a claim for relief made against an opposing party after an original claim has been made. A defendant must include in her answer to a complaint any claim that (1) the defendant has against the plaintiff that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim and (2) does not require adding another party over whom the court cannot acquire jurisdiction. A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.
Issue preclusion
Issue preclusion stops the relitigation of issues of fact or law that have already been decided in a previous case. For issue estoppel to apply, (1) the issue at hand must be the same as one brough in the previous case, (2) the issue must have been actually litigated in the previous case, (3) there must be a final judgment, and (4) the determination of the issue must have been essential to that previous judgment. In addition, the party against whom issue preclusion is being sought must have been a party to the previous case.
However, trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge may not allow use of offensive collateral estoppel.
Offensive issue preclusion
Thus, “offensive” use of collateral estoppel by a nonparty to the original action is permitted. Trial courts have broad discretion to determine whether offensive collateral estoppel should be applied. If a plaintiff could easily have joined in the earlier action or if offensive estoppel is found to be unfair to a defendant, then a trial judge should not allow it.
The preclusive effect of federal judgments is typically determined under federal law. However, federal common law requires that the preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of the state where the federal court is located.
However, trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge may not allow use of offensive collateral estoppel.
Joinder of Plaintiffs
Under the Federal Rule of Civil Procedure (20), persons may join in one action as plaintiffs if (i) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and (ii) there will be any question of law or fact common to all plaintiffs.
compulsory counterclaim
claim for relief asserted against an opposing party in response to that party’s earlier claim.
(1) arises from the same transaction or occurrence as the other party’s claim
(2) does not require adding another party over whom the court can’t acquire jd
two dismissal rule
applies when
(1) the plaintiff’s first action was voluntarily dismissed in state or fed court and
(2) P brought second action in FED COURT and filed a notice of voluntary dismissal
a stipulation of dismissal signed by both parties does not could for this
JMOL
Requests that the court issue a judgment in favor of the movant because the evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor.
may be filed before the case is submitted to the jury but only after the nonmovant has had the opportunity to present its case.
Involuntary dismissal
A defendant can move for an involuntary dismissal if the plaintiff failed to prosecute the case or comply with a rule or court order. If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise)
P’s burden for prelim injunction
- movant is likely to succeed on merits
- movant is likely to suffer irreparable harm in absence of relief
- balance of equities favors movant and
- injunction is in public’s best interests
methods of service
Process can be served by
(1) following the rules of the state where the court is located or where service is made,
(2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or
(3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
methods of consenting to PJ
Express consent – by contractually agreeing to the court’s jurisdiction (e.g., forum-selection clause)
Implied consent – by engaging in an activity that the forum state has a substantial interest in regulating (e.g., driving on public roads)
Waiver – by failing to assert a personal-jurisdiction objection in a pre-answer motion or answer, whichever occurs first
Appearance – by voluntarily appearing in court to litigate the merits of the case without challenging personal jurisdiction (i.e., a “general appearance”)
permissive joinder of parties
may be used when
(1) the claims asserted by or against the joined parties arise out of the same transaction, occurrence, or series of transactions or occurrences and
(2) the action will involve a common question of law or fact among all joined parties.
proper venue
venue is proper in any judicial district where:
(1) any defendant resides—so long as all defendants reside in the same state (i.e., residency-based venue)
(2) a substantial portion of the events that gave rise to the suit occurred (i.e., events-based venue)
(3) a substantial part of the property at issue is located (i.e., property-based venue) or
(4) any defendant is subject to the court’s personal jurisdiction—but only if none of the above provisions apply (i.e., fallback provision).
analysis when unclear whether an issue is substantive or procedural, and it’s state law v federal rule
(1) det if there is conflict between the state law and federal rule
(2) if there is conflict, the go with the federal rule when the rule
(a) is arguably procedural and
(b) does not abridge, modify, or enlarge a substantive right.
transfer of venue, conflict of laws
Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located.
Claim preclusion
Claim preclusion applies and prevents the relitigation of identical claims when there has been a final judgment on the merits in the previous case, and the previous and current case are sufficiently identical. Claims are identical when the parties involved in the case are identical (or include their privies) and the claims arise out of the same transaction or series of transactions.
when a clerk can enter a default judgment
a clerk can only enter a default judgment when
(1) the claim is for a sum certain,
(2) the request includes an affd est’ing the amount due,
(3) the defaulting failed to appear, and
(4) the defaulting party is not incompetent or a minor.
Otherwise only the court can enter default judgment.
motion for more definite statement
needs to
(1) specify the pleading’s defects and the details sought that will cure these defects and
(2) be made before filing a responsive pleading.
omnibus motion rule
requires that all FRCP 12 defenses be consolidated in a single motion for efficiency purposes. This means that the D can’t file a subsequent re-answer motion raising an omitted FRCP 12 defense, except for SMJ.
Because of this rule, PJ, venue, and process/service issues can’t be asserted later if omitted from the first pre-answer motion.
set aside entry of default
a federal court can set aside an entry of default for good cause, which exists when:
(1) the defendant’s failure to timely respond was the result of excusable neglect
(2) the defendant presented a meritorious defense and
(3) the plaintiff would not be substantially prejudiced if the case is reopened.
securing right to jury trial
A party may secure the right to a jury trial on any triable jury issue by
(1) serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to the issue is served and
(2) filing the jury trial demand with the court within a reasonable time after service of the demand.
Rule interpleader
requires that
(1) the action involve a federal question or
(2) the amount in controversy exceed $75,000 and complete diversity exist between the stakeholder and the claimants—ie, they must be citizens of different states
Statutory interpleader
requires an amount in controversy of at least $500 and minimal diversity between the claimants—ie, at least two claimants are citizens of different states
forum non conveniens
Power of federal court to dismiss or stay lawsuit when state or foreign judicial system is better suited to hear case
