Civil Procedure Flashcards

Question

Diversity of Citizenship Cases

Answer 1

Rule: There are two requirements for diversity of citizenship cases: (1) The case is either: (a) between citizens of different U.S. states (diversity) or (b) between a citizen of a U.S. state and a citizen of a foreign country (alienage); AND (2) The amount in controversy exceeds $75,000

Answer 2

Rule: Under the Complete Diversity Rule, a case is no good if any P is a citizen of the same state as any D

Answer 3

Rule: For a human, who is a U.S. citizen, the U.S. state of citizenship is the state where the human is domiciled (only one domicile at a time) How can one change domicile: (1) Physical presence in the state (2) Intent to make a location your home for the foreseeable future For intent, courts look to all relevant factors—like taking a job, buying a house, joining civic organizations, registering to vote, qualifying for in-state tuition Note: Check for diversity when the case is filed

Answer 4

Rule: For a corporation, its citizenship is: (1) Every US state or country where incorporated; AND (1) The one U.S. state or country of its PPB If Incorporated: PPB: (i) where managers direct, coordinate and control its activities If Unincorporated: The citizenship of all its Members

Answer 5

Rule: In determining citizenship of Decedents, Minors, or Incompetents, such persons must sue or be sued through a representative. However, the representative’s citizenship is irrelevant. Use the citizenship of the decedent, minor, or incompetent.

Answer 6

Rule: In addition to complete diversity or alienage, P’s claim must meet amount in controversy and exceed $75,000 (even if by a penny) Exception: Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000 Note: What P wins is irrelevant to SMJ

Answer 7

Rule: Aggregation means adding two or more claims to meet the amount requirement Note: We aggregate claims of any one P against any one D, and factually unrelated claims CAN be aggregated, with no limit to the number of claims

Answer 8

Rule: For joint claims, use the total value of the claim ex. joint tortfeasors Note: With joint claims, the number of parties is irrelevant

Answer 9

Rule: For equitable relief, there are two tests; if either is met, most courts say it’s OK: (1) Plaintiff’s Viewpoint: Does the blocked view decrease the value of plaintiff’s property by more than $75,000? (2) Defendant’s Viewpoint: Would it cost D more than $75,000 to comply with the injunction? Exclusions: Even if the requirements for a diversity or alienage case are met, federal courts decline to hear some cases

Answer 10

Exclusion Rule: Even if the requirements for a diversity or alienage case are met, federal courts decline to hear some cases i.e. Divorce, alimony child custody or to probate an estate

Answer 11

Rule: Federal question occurs when the claim in P’s complaint “arises under” federal law (e.g., federal constitution, legislation) **Well Pleaded Complaint Rule - It is not enough that some federal issue is raised by the complaint, the P’s claim itself must “arise under” federal law, so we look at the claim and ignore other material P alleged Note: Citizenship or amount in controversy is irrelevant ONE QUESTION: Is P enforcing a federal right?

Answer 12

Rule: Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can “remand” the case back to state court Occurs when D would prefer to litigate in federal court

Answer 13

Rule: D must remove no later than 30 days of service (not filing) of the first paper that shows the case is removable. Usually, that means no later than 30 days of service of process

Answer 14

Rule: For removal, all Ds who have been served with process must join Note: They need not all join in the same document; they can file separate notices of removal—just so all of them remove in a timely fashion - 30 days starts anew with service on D2 - Remember: Both D-1 and D-2 must file notices of removal (or they can do so together)

Answer 15

Black Letter Rule: Plaintiffs can NEVER remove. Even if D files a counterclaim against P, so P is a defendant on the counterclaim, P can never, NEVER remove

Answer 16

Rule: Starting point always: D can remove a case that meets the requirements for diversity of citizenship or FQ. There are two big exceptions to this but these exceptions apply only if we are removing on the basis of diversity of citizenship jurisdiction: Rule: Even though the case meets the requirements for a diversity case, we cannot remove if either of these two exceptions applies: (i) No removal if any D is a citizen of the forum (Instate D Rule); AND (ii) No removal more than one year after the case was filed in state court - One-Year Exception. A diversity case with an in-state D can become removable if P voluntarily dismisses the claim against D-2 (must still be 30 days after service) (watch the dates) Note: If removed more than one year, must be remanded to state state court Exception: (Unless D-1 shows that P acted in bad faith by originally joining D-2 to prevent removal

Answer 17

Rule: D removes to the federal district “embracing” the state court where the case was filed (i.e. if in Southern district, must be in Southern district)

Answer 18

Rule: Ds do not need permission from the federal or state courts to remove, To Remove: (1) D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ) (2) D attaches all documents that were served on her in state action and “promptly” serves a copy of the Notice of Removal on adverse parties (3) Then P files a copy of the “notice of removal” in state court

Answer 19

Rule: If P thinks the case should not have been removed, then P moves to remand to state court If P thinks removal was improper for some reason other than lack of SMJ: (e.g., D did not attach relevant papers to her notice of removal), P must move to remand no later than 30 days after Notice of Removal was filed in federal court - Note: If P fails to do so, P waives right to have the case remanded to state court If P thinks removal was improper because the federal court lacks SMJ, P can move to remand to state court anytime

Answer 20

General: Supplemental jurisdiction is a form of federal SMJ that it is fundamentally different from diversity and FQ. Diversity and FQ get cases into federal court. Supplemental jurisdiction does not. Instead, it gets claims into a federal case even though the claims do not invoke diversity of citizenship or FQ

Answer 21

(1) Must have a case that is already in federal court (case invoked diversity or FQ and is pending in federal court) (2) In any case in federal court, additional claims might be asserted in that case; e.g., maybe P has additional claims, or maybe there’s a counterclaim or crossclaim, etc. Note: The federal court MUST have SMJ over every single claim in the case

Answer 22

Rule: The federal court MUST have SMJ over every single claim in the case. If it does, it can be heard in the federal court case. If it does not, it cannot be asserted in the pending case in federal court. i.e. Each additional claim is tested to see if it invokes diversity of citizenship or FQ BUT if it does not, the federal court can still hear the claim if it invokes supplemental jurisdiction

Answer 23

1. The Test - a “common nucleus of operative fact” with the claim that invoked federal SMJ (i.e. the claim that got the case into federal court) Note: The test is always met when the claim arises from the same transaction or occurrence (T/O) 2. The Limitation - by statute certain claims cannot invoke supplemental jurisdiction even though they meet “the test.” The limitation applies in diversity cases only - In a diversity case, claims by Ps cannot invoke supplemental jurisdiction Exception to the Limitation: If there are multiple Ps and the claim by one of them does not meet the amount in controversy requirement, then the limitation does not apply

Answer 24

Rule: A non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is: a. Asserted by a plaintiff b. In a diversity of citizenship (not FQ) case AND c. P does NOT have the ability to bypass the amount in controversy requirement (Note: can bypass if multiple Ps and one meets it)

Answer 25

Rule: Even if the requirements for supplemental jurisdiction are met, the court has discretion to decline it. It can do so if the state law claim is complex or state law issues would predominate in the case. **More likely is that It can decline supplemental jurisdiction if the federal claim was dismissed early in the case

Answer 26

Rule: In a diversity of citizenship case in federal court, the Erie Doctrine applies

Answer 27

Approach an Erie question in this order: (STEP 1) Ask: is there some federal law (like federal constitution or statute or FRCP or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid STEP 2. If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.” Five issues are clearly “substantive”: (1) Elements of a claim or defense, (2) Statute of limitations, (3) Rules for tolling statutes of limitations, (4) Conflict (or choice) of law rules, and (5) Standard for whether to grant a new trial because a jury’s damages determination is excessive or inadequate Note: So in diversity cases under these issues, state law MUST be applied STEP 3. If there is no federal law on point and the issue is not one of the five just listed, the federal judge must determine whether the issue is “substantive.” The law is very unclear, consisting of some factors that no one knows how to weigh: a. Outcome Determinative: Would applying or ignoring the state rule affect outcome of case? If so, it’s probably a substantive rule, so should use state law b. Balance of Interests: Does either federal or state system have strong interest in having its rule applied? c. Avoid forum shopping: If the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law

Answer 28

Rule: There is no GENERAL federal common law, so the general common law of torts, contracts, and property is STATE law, and federal courts must apply that state substantive law in a diversity case Note: There are areas in which federal courts are free to make up common law on their own: international relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights. In these areas, there is no role for state law **Important area of FCL = the preclusive effect of a federal judgment

Answer 29

Rule: P may lay venue in any district where: • ALL defendants reside (note, special rule); OR • A substantial part of the claim arose Note: The provisions above do NOT apply if the case was REMOVED from state to federal court. There, venue is in the federal district embracing the state court where the action was filed. These rules are for cases initially filed in federal court

Answer 30

Rule: A substantial part of a claim can arise in more than one district Ex. So a substantial part of a tort claim might arise where the defective product was manufactured and where P was injured. A substantial part of a K claim might arise where the K was entered and where it was to be performed

Answer 31

Answer: Yes, but if another defendant does reside in the U.S., venue must be proper as to her in accordance with the rules above (Note If P sues Ds that reside in different districts all in the same forum state, P can sue both D in the venue where either D resides

Answer 32

1. Humans reside in the district where they are domiciled (note, can only have one domicile) 2. Businesses (corporations or unincorporated) reside in ALL districts where subject to PJ for the case

Answer 33

Rule: Transfer goes from one trial court in a judicial system to another trial court in the same judicial system. So a federal district court may transfer the case to another federal district court. Terminology: The original court is the “transferor,” and the one to which the case is sent is the “transferee.” BUT the transferee must be a proper venue and have PJ over the defendant—and generally those must be true without waiver by D Exception: Under transfer statute #1 (below), the court can transfer to any district (even an improper venue) if all parties consent and the court finds cause for the transfer. It is unlikely that P will consent to this, so it’s not clear this happens much.

Answer 34

Statute #1: If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interest of justice. Because transfer overrides P’s choice of forum (and because P chose a proper venue), the burden is on the person seeking transfer (usually D). Factors that court looks to in deciding where to transfer is public and private factors showing that the tranferee is at the center of gravity Public: - what law applies - what community should be burdened w/ jury service Private Factors: (convenience) - where the evidence and witnesses are The existence of a valid forum selection clause (we’ll see in a minute) prescribing venue in the other federal district establishes that the private factors support transfer

Answer 35

Rule: The transferee | applies the choice of law rules of the transferor unless transfer is to enforce a forum selection clause

Answer 36

Rule: A forum-selection clause (“FSC”) is a provision in which the parties agree that a dispute between them will be litigated in a particular place Federal law enforces FSCs (if they’re not unreasonable). Some states do not. In federal court, federal law governs transfer. So a federal court may enforce a FSC even though a state court in that state would not

Answer 37

Statute #2: If the original district is an improper venue, the court may transfer in the interest of justice or dismiss Usually the court will transfer if possible. When it does, the transferee applies the choice-of-law rules of the state in which it sits (in a diversity case), and NOT the choice-of-law rules of the transferor district

Answer 38

Rule: Like transfer, there is another court that is the center of gravity, that makes more sense than the present court. But here, the court does not transfer to the more convenient court, SO it dismisses or stays the case

Answer 39

Rule: To stay means hold in abeyance; nothing happens in the case, it just sits there Note: Whether it dismisses or stays, the idea is that P will then sue in the other court Why does the court dismiss or stay? Because the more convenient court is in a different judicial system (e.g., a foreign country), so transfer is impossible The other court must be available and “adequate.” Suppose the center-of-gravity court, which is in a foreign country, does not permit jury trials, recovery for pain and suffering, or other remedies

Answer 40

Rules: - P has a right to amend 21 days after D serves her first rule 12 response - P has a right to amend Note: A right to amend saves the waivable defenses

Answer 41

Rule: If there is no longer a right to amend, parties Must seek leave of court. It will be granted if “justice so requires.” Factors courts look to to rule: - delay - prejudice - futility of amendment

Answer 42

Rule: Rule 12 requires D to respond in one of two ways: (1) By motion or (2) by answer. To avoid default, D must do one of these two things no later than 21 days after being served with process. If D waived service, D has 60 days from when P mailed the waiver form

Answer 43

Rule: Motions are not pleadings; they are requests for a court order. Issues of form: • 12(e) motion for more definite statement—the complaint is so vague or ambiguous D simply cannot respond; must make this motion before answering; • 12(f) motion to strike—asks the court to remove redundant or immaterial things from pleadings; any party may move for this

Answer 44

• (1) lack of subject matter jurisdiction (SMJ); • (2) lack of PJ; • (3) improper venue; • (4) improper process (problem with the papers); • (5) improper service of process; • (6) failure to state a claim; • (7) failure to join indispensable party. These defenses can be put either in a motion to dismiss or in the answer

Answer 45

Rule: “Waivable” defenses must be put in the first rule 12 response (motion or answer) or else they are waived Waivable Defenses: Note: Whenever the court determines that it has no SMJ, it must dismiss (or, if the case had been removed from state court, must remand to state court)

Answer 46

Rule: Answers are pleadings. Two things must be done in the answer: a. Respond to allegations of complaint: (1) Admit; (2) Deny; (3) State that you lack sufficient information to admit or deny b. Raise affirmative defenses: these inject a new fact into the case, which will allow D to win. Classic affirmative defenses are statute of limitations, Statute of Frauds, res judicata, self-defense. All Rule 12(b) defenses are also affirmative defenses - If D asserts an affirmative defense, P does not have to respond to the answer. The allegations in D’s answer are deemed denied

Answer 47

Rule: Filing a complaint commences an action The complaint must contain: • A statement of grounds of subject matter jurisdiction; • A short and plain statement of the claim, showing entitled to relief; • A demand for relief sought (e.g., damages, injunction, declaratory judgment) Note: In stating the claim, federal courts traditionally used “notice pleading,” which means you only need enough detail to put the other side on notice. Now, though, the Supreme Court requires more detail (Twombly and Iqbal) - Plausibility

Answer 48

Rule: The Supreme Courts now require plausibility (Twombly and Iqbal) for filing a complaint - To determine plausibility, the judge uses her own experience and common sense. D can challenge the complaint by making a Rule 12(b)(6) motion Particularity - Three matters must be pleaded with even more detail - particularity and specificity are ___

Answer 49

Rule: That’s where the evidence at trial does not match what was pleaded, can amend to plead the new claim - Why: This ensures that the pleadings match what was actually tried - Note: D can object or it is brought in

Answer 50

Rule: To join a claim not originally asserted is not barred if the amendment relates back. Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading Relation back means you **Treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem

Answer 51

Rule: The amendment will relate back if: • The amendment concerns the same conduct, transaction, or occurrence as the original; • The new defendant knew of this case within 90 days of filing; • She also knew or should have known that, but for a mistake, she would have been named originally. Note: This applies when P sued the wrong D first, but the right D knew about it

Answer 52

Rule: These set forth things that happened AFTER the pleading was filed Note: No RIGHT to file, you must make a motion; whether it should be granted is in the discretion of the court

Answer 53

Rule: Rule 11 applies to all documents except discovery (which are treated by a different rule) - When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry • The paper is not for an improper purpose, and • The legal contentions are warranted by law (or nonfrivolous argument for law change), and • The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation). In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document). It is a “continuing certification.”

Answer 54

Rule: If there is a violation (e.g., assertion of a baseless claim), Rule 11 sanctions may be ordered against the party, attorney, or firm responsible General rule: Law firm is jointly responsible with its attorney who violates Rule 11 Note: Before imposing a sanction on you, the court must give you a chance to be heard Purpose: the point is to deter, not punish (courts often impose non-monetary sanctions)

Answer 55

Rule: You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed Note: The court can raise Rule 11 problems on its own (sua sponte) and there is no safe harbor. The court usually issues an “order to show cause” (“OSC”) why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone

Civil Procedure Flashcards

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