Civil Procedure Flashcards
(160 cards)
1
Q
What is personal jurisdiction?
A
The court’s power over the parties
2
Q
2-Step Analysis to Determine Personal Jurisdiction
A
- Must fall within state statute
- Must satisfy the Constitution
3
Q
What actions satisfy the constitutional analysis for personal jurisdiction?
A
The defendant has minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice.
4
Q
What factors are assessed to determine if constitutionality is satisfied under personal jurisdiction?
A
- Contact - (1) purposeful availment (voluntary act within the forum state) and (2) foreseeability (foreseeable that defendant could be sued in the state)
- Relatedness - plaintiff’s claim must relate to defendant’s contact with the forum
If there IS relatedness: (Specific PJ)
3. Fairness - (1) burden on the defendant and witnesses, (2) state’s interest, and (3) plaintiff’s interest
If there IS NOT relatedness: (General PJ)
3. At Home or Service of Process - (1) defendant has been served with process in the state or (2) defendant is “at home” in state (humans = domicile; coporations = incorporation or principal place of business)
5
Q
What is sufficient notice?
A
Notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.”
Notice generally consists of:
1. Summons (formal court notice of suit and timing of response)
2. Copy of Complaint
6
Q
Who can serve process?
A
- At least 18
- Not a party to the action
7
Q
When must process be served?
A
Within 90 days of filing the complaint
8
Q
How may processed be served to a person?
A
- Given to the defendant personally
- Given: (a) at the defendant’s usual place of abode, (b) with someone of suitable age and discretion; and (c) who resides there
- Delievered to the defendant’s agent if within scope of agency
- Permitted by the law of the state: (a) where the federal court sits; or (b) where service is made are permitted
9
Q
How may process be served on a corporation?
A
- Delievering to an officer, managing agent, or general agent
- Using a method permitted by the state: (a) where the federal court sits; or (b) where service is to be made
10
Q
May a defendant waive service of process? If so, how?
A
Yes, if the defendant executes and mails the waiver form to the plaintiff within 30 days
11
Q
When is waiver of service of process effective?
A
When the plaintiff files the waiver in court
12
Q
What is subject matter jurisdiction?
A
The court’s power over the case
13
Q
How do state courts get subject matter jurisdiction?
A
All state courts have subject matter jurisdiction EXCEPT over:
* Patent Infringement
* Bankruptcy
* Federal Securities
* Antitrust Claims
14
Q
Can personal jurisdiction be waived?
A
Yes
15
Q
Can subject matter jurisdiction be waived?
A
No. If a case does not invoke federal SMJ, the federal court cannot hear the case. If it does, the judgment is void.
16
Q
What are the two types of subject matter jurisdiction?
A
- Diversity Jurisdiction
- Federal Question Jurisdiction
17
Q
What is diversity of citizenship jurisdiction?
A
- The case is either: (a) between citizens of different U.S. states; OR (b) between a citizen of a U.S. state and a citizen of a foreign country
- The amount in controversy exceeds $75,000
18
Q
Who are the right kind of litigants in a diversity jurisdiction case?
A
If all plaintiffs are different citizens of the state as all defendants when the case if filed.
19
Q
How do you establish a new domicile?
A
- Physical presence
- Intent to make that place your home for the indefinite future
20
Q
Which state are unincorporated associations citizens of?
A
It is a citizen of each state its members are citizens of.
21
Q
For class actions, what is the citizenship?
A
The citizenship of the named representative
22
Q
What is aggregation of claims?
A
Adding two or more claims to meet the amount in controversy requirement of diversity jurisdiction.
23
Q
When is aggregation of claims applicable?
A
Any single plaintiff may aggregate all of her claims against a single defendant, even if the claims are not related to each other.
24
Q
In diversity jurisdiction, how do you determine the amount in controversy if the request relief is equitable relief?
A
- Plaintiff’s Viewpoint - If the plaintiff determines that the value is more than $75,000; or
- Defendant’s Viewpoint - If the defendant determines that the value is more than $75,000
25
Which cases are excluded from diversity jurisdiction?
1. Divorce
2. Alimony
3. Child Custody
4. Probate
26
May a plaintiff voluntarily change citizenship to establish diversity jurisdiction?
Yes, as long as the change is beofre the suit is commenced.
However, if a party attempts to create diversity by a sham transaction, the courts will ignore the transaction and declare that diversity does not exist.
27
What is federal question jurisdiction?
When the plaintiff's claim arises under federal law
28
What is removal?
When a plaintiff sues a defendant is state court but the defendant wishes to litigate in federal court
29
When is removal proper?
An action originally filed in a state court may be removed by a defendant to federal court when the case could have been filed in federal court.
If the removing case is based SOLELY on diversity of citizenship:
1. The case should not be removed if **any** defendant is a **citizen** of the forum state
2. The case should not be removed **more than 1 year** after the case was filed in state court
30
How is a case removed?
When the defendant files a "notice of removal" in federal court, stating the grounds of removal, and serves a copy of the notice on adverse parties and the state court.
Note: State or federal court permission is not required. If the plaintiff wishes to challenge removal, they must file an appropriate motion.
31
When must a defendant remove a case?
The defendant must remove no later than 30 days after service of the first paper that shows the case is removable.
32
Who must join in removal?
All defendants who have been served with process must join in removal.
33
Can plaintiffs remove a case?
Never - even if the defendant files a counterclaim
34
If a case is removed, which venue is appropriate?
The federal district where the state court resides.
35
When must a plaintiff make a motion to remand to state court?
If the motion to remand is based on a reason other than lack of SMJ, she must remand no later than 30 days after the filing of the notice of removal.
If removal was improper because the federal court lacked SMJ, there is no time limit on ordering remand.
36
What is supplemental jurisdiction?
Supplemental jurisdiction allows claims to be added to a federal case even though the claims cannot use diversity or federal question SMJ
37
4-Step Analysis to Supplemental Jurisdiction
1. Is there is a case already in federal court based on diversity or FQ SMJ?
2. Does the court have diversity or FQ SMJ over the additional claim?
(If yes, analysis ends and court has SMJ over the additional claim. If no, proceed to next question)
3. Does the claim arise from a common nucleaus of operative fact?
4. If the case is based on **diversity** (NOT FQ SMJ), the **PLAINTIFF** cannot invoke supplemental jurisdiction unless there are multiple plaintiffs and the claim by one of them does not meet the amount in controversy requirement.
38
3-Step Analysis to the Erie Doctrine
1. Is there some federal law on point that directly conflicts with the state law? **(If so, apply federal law)**
2. Is the issue substantive based on the following issues?
a. Conflict of law
b. Elements of a claim or defense
c. Statutes of limitation
d. Rules for tolling statutes of limitations
e. Standard for granting a new trial based on jury's damages
**(If so, apply state law)**
3. Is the issue substantive or procedural?
a. Outcome determinative - affects the outcome of the case
b. Balance of interests - federal or state interest has a strong interest in having its rule applied
c. Avoid forum shopping - cause parties to flock to federal court
**(If substantive, apply state law. If procedural, apply federal law)**
39
What is venue?
Which court is the proper federal court to bring a case
40
Where may a plaintiff choose venue?
1. Where all defendants reside; or
2. Where a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located
41
Where does a human reside for venue purposes?
In the federal district where she is domiciled
42
Where does a corporation reside for venue purposes?
In all districts where it is subject to PJ for the case
43
When is transfer of venue proper?
1. If the original district is proper, the court can order transfer based on convenies of parties and witnesses and in the interests of justice (public AND private factors)
2. If the original district is improper, the court may transfer in the interest of justice or dismiss (private factors
44
If venue is transferred, which law applies?
1. If the original district was proper, the transferee court must apply the choice of law rules of the transferor court
2. If the original district was improper, the transferee applies its own choice of law rules
3. If the parties agree to a forum selection clause, the rules of the FSC will apply unless it is unreasonable based on public factors
45
What is a complaint?
A commencement of action
46
What must a complaint contain?
1. Statement of grounds of SMJ
2. Short and plain statement of claim showing that the plaintiff is entitled to relief **(must have sufficient facts to support a plausible claim)**
3. A demand for relief sought
47
For cases involving fraud, mistake, or special damages, which level of detail must complaints include?
Particularity or specificity
48
How must a defendant respond to a complaint?
1. Motion; or
2. Answer
49
When must a defendant respond to a complaint?
No later than 21 says after being served with process. If the defendant waived service, the defendant has 60 days from when the plaintiff mailed the waiver form to respond.
50
What motions may a defendant raise in a response?
1. Rule 12(e) - Motion for more definite statement
2. Rule 12(f) - Motion to strike
3. Rule 12(b) - Motion to dismiss
51
Is a Rule 12(b) motion is not put in the first reponse (motion or answer), which defenses are waived?
1. Lack of PJ
2. Improper venue
3. Improper process
4. Improper service of process
52
If a Rule 12(b) motion is not put in the first response (motion or answer), which defenses ARE NOT waived?
1. Failure to state a claim (availale until trial)
2. Failure to join an indispensable party (available until trial)
3. Lack of SMJ (available anytime)
53
If the court denies a motion to dismiss under Rule 12, when must the defendant serve her answer?
No later than 14 days after notice of denial
54
What must a defendant do in an answer?
1. Admit some or all allegations
2. Deny some or all allegations
3. State that she has insufficient knowledge to admit or deny some or all of the allegations
55
If a defendant fails to deny an allegation in an answer, what is the result?
The allegation is admitted (except regard the amount of damages)
56
When does a plaintiff have the right to amend the pleading?
No later than 21 days after the defendant serves her first Rule 12 response
57
When does the defendant have the right to amend the pleading?
No later than 21 days after serving it
58
After the right to amend has expired, when may a party amend the pleading?
When the party receives leave of the court or gets written consent by the opposing party.
The court will grant leave "when justice so requires." The court considers:
1. Length of delay
2. Prejudice to the other party
3. Futility of amendment
59
If a party fails to object to evidence that does not match the pleading, what is the result?
The party introducing the evidence may move to amend the complaint to conform the evidence
60
When may a party amend a pleading to join a claim not originally asserted after the statute of limitations has run?
If the amended pleading "relates back" (i.e., concerns the same conduct, transaction, or occurence in the original pleading)
61
When may a party amend a pleading to change a defendant after the statute of limitations has run?
1. The amendment concerns the same conduct, transaction, or occurence as the original
2. The defendant had such knowledge of the case such that she will be able to avoid prejudice; and
3. The defendant knew or should have known that, but for a mistake, she would have been named originally
62
When does the Rule 11 signature requirement apply?
All papers except discovery
63
What is the signature requirement under Rule 11?
The lawyer or pro se party certifies to that to the ebst of her knowledge and belief:
1. The paper is not for an improper purpose
2. The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
3. The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation
64
What are the purpose of sanctions?
To deter a repeat of the conduct
65
To whom may sanctions be imposed?
1. Party
2. Lawyer
3. Lawyer's Firm
66
Safe Harbor Provision
If an opposing party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions.
67
When is joinder by the plaintiff permissible?
1. Any additional claim she has against that adverse party
2. The additional claims must have SMJ
68
When is joinder proper when there are multiple plaintiffs and defendants?
1. The claims arise from the same transaction or occurence
2. The claims raise at least one common question of law or fact
3. The claims have SMJ
69
When may an absentee party be joined into a claim?
1. If the absentee is necessary or required: (a) the court cannot afford complete relief among the existing parties, (b) the absentee's itnerest may be harmed, or (c) the absentee claims an interest that subject a party to a risk of multiple obligations
2. If the absentee is necessary, joinder is feasible if: (a) there is PJ over the absentee; and (b) there will be SMJ over the claim
3. If joinder is not feasible, the court may determine to continue or dismiss the case based on: (a) if there is an alternative forum available, (b) the likelihood of harm to the absentee, and (c) whether the court can shape relief to avoid harm to the absentee
70
Compulsory Counterclaims
A counterclaim that arises from the same transaction/occurance as the plaintiff's claim. Unless the counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived
71
Permissive Counterclaims
A permissive counterclaim is one that does not arise from the same tansaction/occurence as the plaintiff's claim. The party is not required to file it in this case and can sue on the claim in a separate case
72
Are crossclaim compulsory or permissive?
Permissive
73
What is an impleader claim?
One where a defending party is bringing a new party into the claim. An impleader claim is used to shift the liability to the third-party.
74
Indemnity vs Contribution Impleader
Indemnity = shifts liability completely
Contribution = shifts liability pro-rata
75
Is an impleader claim permissive or compulsory?
Permissive
76
What is the process for filing impleader?
1. File a 3rd party complaint naming the 3rd party
2. Have the complaint served
77
When must a defendant implead?
Within 14 days of serving the answer
78
What is intervention?
When a nonparty absentee uses intervention to bring herself into the case
79
When is an intervention of right?
When the absentee's interest would be harmed if she is not joined or that her interest is not adequately represented by the current parties
80
What are the requirements for class actions?
1. Numerosity
2. Commonality
3. Typicality
4. Adequate Representation
81
Types of Class Actions
1. **Prejudice** - Necessary to avoid harm either to class member or to the non-class party
2. **Injunctive Relief** - Seeks injunction or a declaratory judgment
3. **Damage Relief/Common Question** - Common questions predominate over individual questions and the class action is a superior method to handle the dispute
82
At what point is a case a class action?
When the court grants the motion to certify it as a class action. The court must:
1. Define the class and class claims, issues, or defenses; and
2. Appoint class counsel, who must fairly and adequately represent the interests of the class
83
In what type of class action is notice required? What is required in the notice?
Type 3, the court notice must include information that the individual:
1. Can opt out
2. Will be bound by the judgment if they do not opt out; and
3. Can enter a separate appearance through counsel
84
Class Action Fairness Act
Grants SMJ separate from diversity jurisdiction if:
1. There are at least 100 members
2. Any class member is of diverse citizenship from any defendant; and
3. The aggregated claims of the class exceed $5 million
85
What are initial required disclosures?
Within 14 days of the Rule 26(f) conference, each party must disclose:
1. The names, phone numbers, and addresses of persons with discoverable information and the topics on which they have discoverable information that the party may use to support her claims or defenses
2. Documents and tangible things that the party may use to support her claims or defenses
3. Computation of monetary relief
4. Insurance coverage
86
What is the result if a party fails to disclose material in initial discovery?
The party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless
87
When are expert witnesses required to be disclosed? What is required to be disclosed?
At a time directed by the court, each party must identify expert witnesses who may provide testimony at trial and a written report including:
1. Opinions that the EW will express
2. The bases for the opinions
3. The facts used to form the opinions
4. The EW's qualifications; and
5. How much the EW is being paid
88
What are required pretrial disclosures?
30 days before trial, the parties must give detailed information about their trial evidence, including the identity of witnesses, documents, ESI, and other things that they intend to introduct at trial
89
When may a party send discovery requests?
AFTER the Rule 26(f) conference
90
What discovery tools may a party utilize?
1. Depositions
2. Interrogatories
3. Request to Produce
4. Medical Exams
5. Request for Admission
91
Who may be deposed?
Both parties and nonparties
92
Does a party need to be served with a subpoena to be deposed?
No, a notice of deposition is sufficient to compel her appearance
93
What is the geographical limitation on depositions?
100 miles from where the nonparty resides or is employed
94
What are the limitation on depositions?
1. A party cannot take more than 10 depositions
2. Depositions cannot exceed one day of seven hours
95
Depositions may be used at trial in the following ways:
1. To impeach the deponent
2. For any purpose if the deponent is an adverse party
3. For any purpose if the deponent is unavailable for trial
96
Who may be sent an interrogatory?
Parties only
97
What is the maximum number of interrogatories?
25
98
When must interrogatories be answered?
Within 30 days from their service
99
If the answer to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can ___.
Allow the requesting party to have access to the records
100
Who may be sent a request to produce?
Parties only
101
When must a party respond to a request to produce?
Within 30 days of service
102
When is a medical exam valid?
1. The party has received a court order
2. The person's health is in actual controversy
3. Good cause
103
Who may be compelled to undergo a medical exam?
Only parties or persons in the party's custody and control
104
Who may be given a request for admission?
Parties only
105
When must a party respond to a request for an admission?
Within 30 days of service
106
What is the result if a party fails to deny a proper request for admission?
The matter is deemed admitted
107
If new facts come to light after responding to a discovery that makes a response incomplete or incorrect, the party must ___.
Supplement her response to discovery
108
What is the scope of discovery?
Anything that is relevant to a claim or defense and proportional to the needs of the case
109
Work Product Protection
Work product material is protected from discovery. Work product material is material prepared in anticipation of litigation by the party or any representative of the party.
110
When can work product be discovered?
Only if the party can show substantial need and undue hardship in obtaing the materials in an alternative way. However, opinion work product is never discoverable
111
What is a protective order?
If a responding party thinks a discovery request subjects her to annoyance, embarassment, undue burden, or expense, she can move for a protective order. The court may:
1. Deny discovery
2. Limit discovery; or
3. Permit discovery on specific terms
The party seeking the order must certify that she tried in good faith to resolve the issue w/o court involvement
112
What happens if a party responds to discovery request, but not fully?
1. The requesting party moves for an order compelling the producing party to answer
2. If the producing party violates the order, the court may enter merit sanctions
113
What is the result if a party fails to respond to a discovery request?
The court can enter merit sanctions
114
Merit Sanctions
1. Establishment order (establishes facts as true)
2. Strike pleadings of disobedient party
3. Disallow evidence from the disobedient party
4. Dismiss plaintiff's case
5. Enter default judgment against defendant
115
Temporary Restraining Order
Issued to preserve the status quo until a hearing for a preliminary injunction can be held.
The court will issue a TRO ex parte if:
1. The applicant files a paper oath clearly showing that if the TRO is not issued, she will suffer immediate and irreparable harm
2. The applicant's lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defentant's lawyer
116
How long is a TRO effective for?
14 days - may be extended for another 14 days but cannot exceed 28 days
117
Can a preliminary injunction be issued ex parte?
No
118
What are the requirements for a preliminary injunction?
1. Applicant is likely to suffer irreparable harm mif the injunction is not issued
2. Applicant is likely to win on the merits of the underlying case
3. The balance of hardship favors the applicant; and
4. The injunction is in the public interest
119
When may a plaintiff withdraw a case without court permisson?
Anytime before the defendant serves an answer or motion for summary judgment
120
What is the first voluntary dismissal? What is the second?
The first voluntary dismissal is without prejudice. The plaintiff can refile the case.
The second voluntary dismissal is with prejudce. The plantiff cannot refile the case.
121
What is an entry of default?
A default is a notation by the court clerk on the docket sheet in the case. A default does not happen automatically and the plaintiff must move for entry of default.
122
Can a defendant answer beyond 21 days?
ONLY if default has not been entered
123
Does an entry of default entitle the plaintiff to relief?
No, it just cuts off the defendant's right to respond
124
When may the clerk of the court enter a default judgment?
1. The defendant has made no response at all
2. The claim itself is for a sume certain in money
3. The plaintiff gives an affidavit; and
4. The defendant is not a minor or incompetent
125
What is the result if the court clerk cannot enter a default judgment?
The judge may hold a hearing and has discretion whether to enter the judgment. The defendant is entitled to notice of the hearing if she has appeared in some fashion in the case.
126
When may a defendant move to have the court set aside a default judgment?
1. Good cause
2. Viable defense
127
The party moving for summary judgment must show that:
1. There is no genuine dispute on a material fact; and
2. She is entitled to judgment as a matter of law
128
When can a part move for a motion of summary judgment?
No later than 30 days after close of discovery
129
Rule 26(f) Conference
At least 21 days before the court's scheduling order, the parties must "meet and confer" to discuss the production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information.
130
Final Pretrial Conference
Determines the issues to be tried and evidence to be proffered at trial
131
What actions have a right to jury trial?
Actions at law = jury trial
Action in equity = bench trial
132
How many preemptory challenges may each side use?
3
133
What is the result if the answers in a general verdict with written questions are consistent with each other but inconsistent with the verdict?
The court may enter an appropriate judgment consistent with the answers
134
What is the result if the answers in a general verdict with written questions are inconsistent with each other and inconsistent with the verdict?
No judgment may be entered
135
What is the standard for jdugment of matter of law?
Reasonable people could not disagree on the result, viewed in light most favorable to the non-moving party
136
When can a party move for JMOL?
After the other side has been heard at trial on the issue
137
When can RJMOL be made?
1. If the party has made a motion for JMOL
2. Within 28 days after the entry of judgement
138
When must a party motion for new trial?
28 days of the judgment
139
Remittitur
The plaintiff may remit part of the damages or go through a new trial
140
Additur
The defendant may add damages or go through a new trial
**Additur is never allowed in federal court**
141
What is the deadline to submit an offer to settle?
14 days before the trial
142
When may a party motion for relief from judment for clerical error?
Any time
143
When may a party motion for relief from judment for mistake?
Reasonable time (never more than 1 year)
144
When may a party motion for relief from judment for fraud, misrepresentation, or misconduct by opposing party?
Reasonable time (never more than 1 year)
145
When may a party motion for relief from judment for newly discovered evidence?
Reasonable time (never more than one year)
146
When may a party motion for relief from judment for void?
Reasonable time (no maximum)
147
Final Judgment Rule
The losing party has a right to appeal if the court's order is a final judgment. A judgment is final if the merits of the entire case are decided.
148
When must a party file a notice to appeal?
Within 30 days after entry of judgment
149
What non-final judgments are appealable?
Orders granting, modifying, or refusing preliminary or premanent injunctions
150
Interlocutory Appeals Act
Allows appeal of a nonfinal order if:
1. The district judge certifies that it involves a controlling issue of law
2. As to which there is substantial ground for difference of opinion; and
3. The court of appeals agrees to hear it
151
Collateral Order Doctrine
The appellate court has discretion to hear an appeal on an issue if that issue:
1. Is distinct from the merits of the case
2. Involves an important legal question; and
3. Is essentially unreviewable if parties await a final judgment
152
Standard of Review on Appeal for Questions of Law
De Novo - No deference is given to the district judge when reviewing that decision
153
Standard of Review on Appeal for Questions of Fact in a Bench Trial
Affirm unless the findings are clearly erroneous
154
Standards of Review on Appeal for Questions of Fact in a Jury Trial
Affirm unless reasonable people could not have made that finding
155
Standards of Review on Appeal for Discretionary Matters
Affirm unless the district court judge abused her discretion
156
Harmless Error
No reversal is required if the error is harmless; that is, it did not affect the outcome of the case
157
3 Requirements for Claim Preclusion
1. Case 1 and Case 2 were brought by the same claimant against the same defendant
2. Case 1 ended in a valid final judgment on the merits
3. Case 1 and Case 2 assert the same claim (any right to relief arising form a transaction or occurence)
158
4 Requirements for Issue Preclusion
1. Case 1 ended in a valid, final judgment on the merits
2. The same issue must actually have been litigated and determined in Case 1
3. The issue was essential to the judgment in Case 1
4. The party was a party in Case 1 or in "privity" with the party
159
Defensive vs Offensive Issue Preclusion
Defensive = person was not a party to Case 1 and is the defendant in Case 2
Offensive = person was not a party to Case 1 and is the plaintiff in Case 2
160
What factors do courts use to determine whether nonmutual offensive preculsion is fair?
1. The party to be bound had a full and fair opportunity to litigate in Case 1
2. The aprty to be bound had a strong incentive to litigate Case 1
3. The aprty asserting issue preclusion could have easily joined to Case 1
4. There have been no inconsistent findings on the issue
