Civil Procedure Flashcards
Diversity of citizenship and counterclaims
A compulsory counterclaim (a claim that arises out of the same transaction or occurrence as the plaintiff’s claim) does not need to meet the jurisdictional amount requirement for diversity jurisdiction.
A permissive counterclaim (a claim that arises out of an unrelated transaction) must meet the jurisdictional amount requirement.
Joint tortfeasors subject to joint and several liability are not “indispensable parties”
Remember husband wife hypo
Service on foreign parties
- Under Rule 4, service on a foreign corporation may be made in accordance with international treaty.
- If there is no treaty, service on a corporation may be made
- in accordance with the foreign country’s laws
- as the foreign authority directs in response to a letter request for guidance
- by having the clerk mail process to the defendant, with a signed receipt requested, or
- by any other means not prohibited by international agreement as the court may order.
Constitutional requirement of service of process
Service of process must be reasonably calculated, under all circumstances, to apprise interested parties of the action.
Work Product Doctrine + Discovery
Definition: Trial preparation material which is prepared in anticipation of litigation. It need not be generated by a lawyer. It can be produced my a party themselves
Absolute: opinion work product is absolute, and it consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.
Qualified: work product may be discovered if the requesting party can show (1) substantial need and (2) undue hardship in obtaining the materials in an alternative way.
Scope of discovery in general
A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case. It need not be admissible to be discoverable. THE COSTS of discovery and the needs of the case will be considered as well.
- “discovery may be had of any matter not privileged that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts.”
- If the information is irrelevant to the current case, the court will make an in camera inspection of the file and redact out any information that tis irrelevant.
Discovery of opinions of non-testifying experts (consulting experts)
The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested
Motion for judgment on the pleadings
**A party making a motion for judgment on the pleadings and accompanying it with an affidavit or other matters outside the pleadings may in reality be making a motion for summary judgment, putting the wrong label on the motion.
Common question class action
In a “common question” class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out.
Pre-trial conferences
The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust.
Rule 11 Sanctions
In signing a pleading, the attorney represents, among other things, that he has made a reasonable inquiry into the factual and legal grounds for the pleadings. Here, had the attorney performed any sort of research into the matter, he would have discovered the unusually short statute of limitations period and that, as a result, the plaintiff did not have a valid cause of action. Thus, the attorney violated Federal Rule 11, and he may be sanctioned.
Interlocutory Orders
interlocutory orders are typically not immediately reviewable on appeal until a final order is made, unless they meet one of the exceptions permitting an appeal as of right (i.e., orders granting injunctions; orders appointing a receiver; orders in admiralty cases finding liability but leaving damages to be assessed later; patent infringement orders where only an accounting is ordered; and orders affecting or changing possession of property)
Interlocutory Appeals Act
The Interlocutory Appeals Act allows appeal of a non-final order if:
- The district judge certifies that it involves a controlling issue of law;
- As to which there is substantial ground for difference of opinion; and
- The court of appeals agrees to hear it.
Collateral Order Doctrine
The appellate court has discretion to hear an appeal on an issue if that issue:
Is distinct from the merits of the case;
Involves an important legal question; and
Is essentially unreviewable if parties await a final judgment.
Ex: default judgments that are procedurally or constitutionally defective are subject to collateral attack
Mixed equitable legal suit w/ common questions of law and fact
If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court.
Dismissals for want of prosecution
On the merits IF says with prejudice. Otherwise, court has discretion to designate otherwise, meaning that it doesn’t have to ban another claim.
On the merits
Unless the court said the judgment was “without prejudice” when entered, any judgment is “on the merits” unless it was based on a lack of jurisdiction (both personal and subject matter), improper venue, or a failure to join an indispensable party.
Issue preclusion and due process
Due process requires that issue preclusion may be asserted only against someone who was a party (or in privity with a party) to the previous case (the case in which the issue was actually litigated and determined)
Who issue preclusion is being used by is a different issue. (NMOCE, NMDCE).
NOMCE
Person USING preclusion was not party to case 1 and is PLAINTIFF in case 2.
courts have been very reluctant to permit a nonparty to use issue preclusion to aid him offensively (as a plaintiff) to obtain relief, the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so.
Service of Process (SAID)
Federal Rules of Civil Procedure [Rule 4], service of process can be made by:
(i) personal service,
(ii) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or
(iii) service upon an authorized agent of the defendant. Alternatively, service may be made under
state rules or
by mail under the waiver of service provision of Rule 4(d).
if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a defendant must be served according to the Federal Rules of Civil Procedure. If not, it is considered “procedurally defective” and is therefore subject to a collateral attack. Here, because service by first class mail is insufficient under the Federal Rules, the truck driver may collaterally attack the default judgment arguing insufficient service of process.
Motion to compel
If requesting attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and pay the passenger’s reasonably costs in making the motion.
FEDERAL INTERPLEADER ACT
The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue.
Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required. Here, the mother is a State B resident, and the former girlfriend is a State A resident. Thus, both claimants are diverse from one another, and the $70,000 amount in controversy exceeds the $500 minimum.
Rule 56(d)–summary judgment–discovery required
If non-moving party shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the SJ motion, Rule 56(d) authorizes him to ask for a court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery
What must a judge do with findings of fact and conclusions of law?
Under Federal Rule of Civil Procedure 52, the judge’s findings of fact (and conclusions of law) may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.
