Civ Pro I Flashcards
0
Q
How long before hearing date must notice of motion be filed?
A
28 days, 31 if mailed
1
Q
When should the opposing parties serve upon all other parties and file with the clerk the evidence the party is relying on in opposition to the motion?
A
No later than 21 days before the hearing date
2
Q
General jurisdiction
A
When a defendant engages in substantial in-state activity that is “continuous and systematic”, the courts can hear any claim arising against the defendant, even those wholly unrelated to the contacts
3
Q
ALL private factors in considering a forum non conveniens dismissal
A
- Relative ease of access to sources of proof
- Availability of compulsory process for attendance of unwilling, and costs of obtaining attendance of willing, witnesses
- Possibility of view of premises
- All other practical problems that make trial easy, expeditious and inexpensive
4
Q
Forum non conveniens- PRIVATE initials
A
RAPA
5
Q
FNC-PRIVATE: R
A
Relative ease of access to sources of proof
6
Q
FNC-PRIVATE: A (first one)
A
Availability of compulsory process for attendance of unwilling, and costs of obtaining attendance of willing, witnesses
7
Q
FNC-PRIVATE: P
A
Possibility of view of premises
8
Q
FNC-PRIVATE: A (second one)
A
All other practical problems that make trial easy, expeditious, and inexpensive
9
Q
By presenting the court a paper, the attorney certifies that to the best of their knowledge, info, and belief that:
A
- It is not being presented for any improper purpose
- The claims, defenses, and other contentions are warranted by existing law or by a non-frivolous argument
- The factual contentions have evidentiary support
- The denials of facts are warranted on the evidence
10
Q
ALL public factors in a forum non conveniens dismissal
A
- Admin difficulties from court congestion
- Local interest in having localized controversies decided at home
- Interest in having trial of diversity case in forum at home with law that must govern action
- Avoidance of unnecessary problems in conflict of laws or application of foreign law
- Unfairness of burdening citizens in unrelated forum with jury duty
11
Q
Forum non conveniens- PUBLIC initials
A
ALIAU
12
Q
FNC-PUBLIC: A (first one)
A
Admin difficulties from court congestion
13
Q
FNC-PUBLIC: L
A
Local interest in having localized controversies decided at home
14
Q
FNC- PUBLIC: I
A
Interest in having trial of diversity case in forum at home with law that must govern action
15
Q
FNC-PUBLIC: A (second one)
A
Avoidance of unnecessary problems in conflict of laws or application of foreign law
16
Q
FNC-PUBLIC: U
A
Unfairness of burdening citizens in unrelated forum with jury duty
17
Q
If the court grants a motion for a more definite statement, the responsive pleading must be served when?
A
14 days after the more definite statement is served
18
Q
When can the moving party file a reply memo and/or rebuttal evidence?
A
No later than 14 days before hearing date
19
Q
How many days before the hearing must the written motion and notice of hearing be served?
A
14 days
20
Q
Private factors in considering a 1404 motion
A
- Convenience of the witnesses
- Convenience of the parties
- Where the claim arose
- Where the evidence is located
- In a K case- forum selection clause
21
Q
1404 PRIVATE factors initials
A
PRIVATE PARTIES. CW, CP, WC, PE, K
22
Q
Public factors in considering a 1404 motion
A
- Comparative ease of enforcing judgment in transferor and transferee courts
- Whether the judges in each district are likely to be familiar with the governing law
- Any consideration of relative judicial economy,
- Any local interest in deciding issues at home
23
Q
1404 PUBLIC factors initials
A
CWAA
24
Asahi opinions
1. Purposeful targeting of the forum state through design, marketing, servicing
2. Regular anticipated flow of products that the defendant was aware would end up in the forum state
3. A regular court of dealing that involves a certain level of volume, value, or particularly hazardous goods
25
Stream of Commerce cases
The stream of commerce problem arises when a defendant distributes its goods in multiple states through a third party. Although the defendant knows that some of its goods go to a particular state, it does not know exactly which products go where
26
Specific jurisdiction
- non-resident in forum state
- not present at time of service
- neither consented to jx or appointed an agent'
- neither waived or forfeited objection to jx
27
OTNFP+SJ: burden on defendant balanced against:
1. the forum state's interest in adjudicating the dispute,
2. the plaintiff's interest in obtaining convenient and effective relief
3. the interstate's judicial system's interest in obtaining the most efficient resolution
4. the shared interest of the several states in furthering the fundamental substantive social policies
28
What is required in a pleading?
1. a short statement of the court's jx
2. a short statement of the claim
3. the relief sought
29
Purposeful availment
When a defendant takes specific actions to receive the benefits and protections of the laws of the state
30
When must the parties have their conference to discuss the motion?
7 days prior to filing the motion
31
FRCP governing venue
1390, 1391
32
General jurisdiction
When a defendant engages substantial in-state activity that is "continuous and systematic" the courts could hear any claim arising against the defendant, even those wholly unrelated to the contacts
33
When must a defendant file a notice of removal?
Within 30 days after receipt by or service on defendant
34
"Domicile" of a corporation
Incorporation / Principal place of business
35
FRCP governing transfers
1404, 1406, 1631
36
1404 transfer
When the court has venue and PJ
37
1406 transfers
When a court has improper venue
38
1631 transfers
When a court is lacking SMJ
39
When must a defendant file notice of removal if the pleading is amended?
Within 30 days of the case becoming removable
40
How long does the defendant have to answer the complaint?
21 days
41
Plaintiff must serve defendant in _____ days or it gets dismissed
120
42
Who may serve?
Someone who is at least 18 years old and not a party to the action
43
If the court denies the motion or postpones its disposition until trial, responsive pleading must be served when?
14 days after notice of court's action
44
How many days are added when service is mailed, filed electronically, or left with clerk?
3 days
45
How long does defendant have to answer a waiver request?
At least 30 days, 60 if outside the US
46
Domicile of an individual
Where an individual is physically present and has a certain state of mind with an intent to remain there
47
When a person is given notice of a sanction, how long does the party have to fix the complaint?
Within 21 days
48
How to determine a corporation's principal place of business?
Nerve center test- where the corporation's high level officers direct, control, and coordinate the corporation's activities
49
To request a waiver, plaintiff must
Mail a formal request to waiver, two copies of the waiver form, and a copy of the complaint
50
If service of process is waived, how long does defendant have to answer the complaint?
60 days from the date the request was sent, 90 if outside the US
51
When can a case become no longer removable?
One year after it was commenced
52
How long does defendant have to answer a counter-claim?
21 days
53
FRCP governing Removal
1441, 1446
54
The Reasonable standard in giving notice (Mullane)
Service of process must be reasonably calculated, under all the circumstance, to apprise interested parties of the pendency of the action and to give them an opportunity to present their objection
55
Venue is proper in:
(i) a judicial district in which any defendant resides, if all defendants of the state in which the district is located,
(ii) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or property that is the subject of the action is situated, or
(iii) if (i) or (ii) aren't satisfied, a district in which any defendant is subject to PJ with respect to such action
56
Ways to serve an individual:
(1) personal service
(2) leaving a copy at their dwelling/usual place of abode with someone of suitable age and discretion who resides there, or
(3) delivering copy to agent authorized or appointed by law
57
Exceptions to exercising supplemental jurisdiction:
(1) the claim raises a novel or complex issue of state law
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction
(3) the district court has dismissed all claims over which it has original jurisdiction
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction
58
Ways to serve a corporation:
(i) delivering summons and complaint to an officer or agent authorized to receive service,
(ii) mailing it, or
(iii) following state law
59
Ways a paper can be served:
(a) handing it to the person,
(b) leaving it at the person's office with a clerk or someone in charge, or at the person's dwelling or usual place of abode with someone of suitable age or discretion that resides there,
(c) mailing it to the last known address,
(d) leaving it with the court clerk if the address is not known,
(e) sending it by electronic means, or
(f) delivering it by other means that the person consented to
60
Computing time:
- exclude the day that triggered the period
- count every day
- include the last day but if the last day is a weekend or legal holiday, continue until the next day that isn't a weekend or legal holiday
61
Aggregating claims:
- A P may not aggregate claims against multiple Ds unless asserting joint liability
- Multiple Ps may not aggregate claims against a single D unless they are based on a common, undivided interest
- Multiple Ps can't aggregate separate and distinct claims to reach jurisdictional amount, even if the claims are factually related
- If one P has a claim in excess of the statutory amount and a second P has a claim for less than the statutory amount against the same D, the second P's claim is okay if the claims are related
62
Common nucleus of operative facts
Courts compare the necessary facts to prove the elements of the federal claim with those necessary to prove the state claim
63
Twombly and Iqbal pleading rule:
The claim must include sufficient facts to allow the court to infer that the plaintiff's claim is plausible
64
Facial Plausibility
A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw a reasonable inference that the defendant is liable for the misconduct alleged
65
In meeting statutory amount, non-monetary relief can be valued by considering:
(1) the value to the plaintiff,
(2) the cost to the defendant of complying with the order, and
(3) the cost or value to the party invoking federal jurisdiction
66
Every order granting a PI or TRO must state:
(1) the reason why it was issued,
(2) the terms specifically, and
(3) describe in reasonable detail the act(s) restrained
67
Who is bound by the PI or TRO order?
The parties, their agents, and those persons in active concert or participation with them who receive actual or constructive notice
68
USC 1390
Venue is the geographic area of the proper court for the litigation of a civil action that is within the SMJ of the district courts
69
1332 applies to all cases between:
(1) citizens of different states, (2) citizen of a state and citizens of a foreign state, unless they are lawfully admitted for permanent residence in the US and are domiciled in the same state, and (3) citizens of different states and citizens of a foreign state are additional parties
70
Common nucleus of operative facts
To determine whether the claims are connected by a common nucleus of operative facts, courts compare the facts necessary to prove the federal claim with those necessary to prove the state claim
71
1404 PUBLIC: C
Comparative ease of enforcing judgment in the transferor and transferee courts
72
1404 PUBLIC: W
Whether the judges in each district are likely to be familiar with the governing law
73
1404 PUBLIC: A (first one)
Any consideration of relative judicial economy
74
1404 PUBLIC: A (second one)
Any local interest in deciding issues at home
75
A TRO may be issued without notice if:
(a) specific facts in a complaint clearly show that immediate and irreparable injury will result to the movant before the adverse party can be heard, and
(b) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it shouldn't be required
76
Plaintiff seeking a preliminary injunction must establish:
(1) that he is likely to succeed on the merits, (2) he's likely to suffer irreparable harm in absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) that an injunction is in the public interest
77
Noyes' Erie Test
(1) Is there a FRCP or FRAP on point? If yes, fed rule applies unless it violates the REA or Const. (none do).
If no, (2) is the state rule "bound up" with state created rights and obligations? If yes, state rule applies.
If no, (3) would applying the rule dictate the result? (Lead to forum shopping or unfair administration of the law?) If no, fed rule applies.
If yes, then balancing test (are there affirmative countervailing considerations of federal judicial administration?)
78
Due Process Clause/ beginning paragraph
The Due Process clause of the 14th Amendment prevents a court from hearing a case unless a sufficient connection exists between the defendant and the forum. The long-arm statute in CA authorizes the exercise of jx to the full extent permitted by the U.S. Const.
79
In order for a court to hear a case, it must have:
PJ, SMJ, and be in the proper venue
80
Ways to show general jurisdiction:
Substantial in state activity, domicile, incorporation/PPOB, present in state at time of service, and consent
81
When is a contact relevant?
A contact is relevant if it is foreseeable that the D could be sued in the forum state for that contact
82
How to determine the contact quality?
The quality of the contact is determined by the relationship of the facts that give rise to the underlying cause of action
83
SMJ first paragraph
The second itching courts must have to hear a case is SMJ. There are two main categories of SMJ: federal question and diversity of citizenship. If the court lacks SMJ, any party may move at any time to have the case dismissed.
84
SMJ: citizen of the state
A person must be a citizen of the US and domiciled in that state
85
SMJ: citizenship of a defendant corporation
It is a citizen of both the state it is incorporated and have their PPOB
86
First sentence of supplemental jurisdiction
When a fed ct has jurisdiction over at least one claim, in some circumstances, the ct may be able to exercise jurisdiction over all the claims
87
First sentence of aggregating claims
For the purposes of meeting the jurisdictional amount, the P(s) may aggregate their claims
88
First sentence of venue
The last thing a court needs to hear a case is proper venue.
89
First sentence of forum non conveniens
Forum non conveniens is used when a more convenient forum is in a different state or foreign nation. When courts consider a FNC a dismissal, they consider many factors
90
First sentence of transfer
A case filed in a federal court may sometimes be transferred to a more convenient court. Fed cuts may only transfer to another federal ct, and it must always be where venue and PJ are proper
91
First sentence of removal 1441
Under 1441, a D can remove an action from state ct to fed ct that could have originally been brought by the P in fed ct.
92
First sentence of removal 1446
Under 1446, a D seeking removal must file a notice of removal, containing a short and plain statement of the grounds for removal, in the federal ct in the district the action is pending
93
First sentence of PI
A PI is appropriate where the P is being threatened by some injury for which he has no legal remedy
94
First sentence of TRO
A TRO is granted by a court when it is necessary to prevent irreparable injury to a party and the injury will occur before the PI hearing can be held
95
First sentence Sanctions
Rule 11 sets out strict standards designed to ensure honesty and accuracy in pleadings and motions
96
Nicastro opinions
4- depends on whether the D manifested intent to submit to the sovereign authority
2- it had to be a regular course of conduct towards the state
3- targeting the US specifically purposefully availed itself of the US market
97
Asahi Facts
The P lost control of his motorcycle and brought a product liability suit against Cheng Shin (Taiwanese) who in turn filed cross-complaint against Asahi (japanese). The P settled and the parties left were Cheng Shin and Asahi. The SC had a plurality opinion over the stream of commerce and whether Asahi established minimum contacts with CA
98
Nicastro Facts
Nicastro injured his hand in NJ using a machine manufactured by McIntyre in England. The SC held that exercise of jx by NJ state cts was improper and that merely placing a product into the stream of commerce is not enough to subject D to PJ, even if D knows the product will end up in the forum
