Civil Procedure Flashcards
Complaint
(1) filed with the court [commences SoL];
(2) with a summons [signed by clerk];
(3) served to OP within 90 days of filing
Elements of a Complaint – (1) Short/plain statement for grounds for JX;
(2) S/P statement of the claim/facts;
(3) Damages/Demand for Relief
Specificity in Elements – mistake/Fraud and Special Damages
Answer
Admit/deny all or some of claims in C. Whatever not denied = admitted. Must be served 21 days after C served. Affirmative defenses must be explicitly plead in the A (e.g., contributory negligence, SoF, SoL, illegality, duress)
Amended Pleadings
Amendment as of Right – no Court permission needed. Must be done within 21 days of serving OG pleading or being served w an answer or 12(b)(6) motion – which ever is first.
* Plaintiff – can amend 1x before D’s Answer. Defendant – can amend 1x after Answer
Amendment by Leave of Court – need Court’s permission after 21 days. Courts grant when justice so requires (liberal).
Relation Back
Amended pleadings can relate back to a date of the original pleading.
Adding/Changing a Claim/Defense – claim/defense arose out of same conduct, transaction, or occurrence of the OG pleading
Changing a Party –
(1) Arose out of same conduct, transaction, or occurrence of the OG pleading;
(2) notice w/in 90 days of filing the C so new party would not be prejudiced;
(3) New party knew/should have the known the action would be brought but for ID mistake
Rule 11
When lawyer signs pleading, lawyer has the knowledge, information, and belief that what he is filing is true + there is a basis for what he is saying.
(1) Legal arguments are warranted by existing law & not presented for improper purpose.
(2) Allegations have evidentiary support.
Counterclaim
P sues D. D sues P for separate claims => D’s Complaint.
Compulsory Counterclaim – arises out of same transaction or occurrence of the OG claim. The court has Supp Jx (no new jx needed)
Permissive Counterclaim – does not arise out of same transaction/occurrence of OG claim. No Supp Jx. Need new/independent SMJ.
Permissive Joinder
Joinder of Parties
multiple plaintiffs can join together if (1) their claims arose from a single transaction or occurrence and (2) a question of law or fact is common. Plaintiffs can join multiple Defendants for same elements listed above.
Compulsory Joinder
Joinder of Parties
Party must be joined if it would be unfair to litigate without them.
Necessary Party – Not joining would impair party’s interest. If joining would destroy jx requirements, the case = go forward.
Indispensable Party – Not joining would prejudice the party. If joining would destroy jx requirements, the case = dismissed.
Intervention
Joinder of Parties
Nonparty tries to join suit + SMJ (No supp. jx)
Intervention as of Right – no permission needed if you have (1) an interest in the property/transaction that is the subject the suit and (2) it would impair/impede your ability to protect your interest if you weren’t involved
Permissive Intervention – need Court’s permission. Claim or defense that has a common question or fact to the suit
Interpleader
I owe; I owe $ to 2 or + people, but unsure how much owed. They get into suit to know how much I owe to each.
(1) Statutory Interpleader – One person owes property claimed by 2 or + people. (1) Nationwide service of process is allowed: can be served anywhere; (2) As long as any two claimants are diverse, jx is okay and only $500 needs to be at stake; (3) Person who owns property starts the suit and deposits the money/property with the court or posts a bond.
(2) Rule Interpleader – (1) Complete diversity is required; (2) no nationwide service is allowed; (3) $75k required to be at stake; (4) no requirement to deposit money/property with court or to post a bond
Impleader
Owes me. Defendant trying to bring in third-party to pay for all or part of the claim. E.g., contribution, indemnification.
Joinder of Claims
Parties can join multiple claims against another party if each new claim has SMJ.
Cross-Claims – P sues 2 Ds. Co-D is now suing other co-D. (1) Claim has arisen out of same transaction or occurrence of the P’s claim; (2) one party must request damages/relief from other party (can’t just say “you’re liable)”
Prerequisites to be Certified as a Class Action
(1) Size: case must be so large that joining little claims would be impractical;
(2) Common Q: q of law or fact among all Ps is common;
(3) Typicality: the claims of the named reps are typical of the other class members;
(4) Fair Representation: claims of the named reps will fairly and adequately represent and protect interests of rest of class.
Types of Class Actions
(1) B1 CA: if not certified as a CA, impairment of the interest of the class members;
(2) B2 CA: injunctive relief is sought by class (not damages);
(3) B3 CA: large tort claims (20-30k ppl) v. companies [superior method to resolve claim]
Class Actions (Opting Out, Notice, Diversity Claim, Certification of Class, Settlement)
Opting Out of Class - B1 & B2 cannot opt out. B3 can opt out.
Notice to All Members – B1 & B2: court’s discretion. B3: all must receive notice. Mail okay ifc an get info by reason effort.
Diversity Claim – (1) Citizenship of the representative is what counts. (2) If one rep has a claim that meets the $75k requirement, other members can be a part of the claim even if their individual claims are less than $75 (except: if total case is $5 million or more, then individual members can have claims less than $75k)
Certification Class as CA – up to the court. If not certified, members can appeal. Also, can continue case as own subclass.
Settlement – Court’s approval required. Permits reasonable AF based on size of the class. A statement detailing any agreement must be supplied to the court.
Discovery
Information is discoverable if the matter is (1) not privileged; (2) relevant; (3) proportionate to the needs of the case
Methods of Discovery
(1) Deposition – party or nonparty (via subpoena); written or oral; limit of 10 depositions per side, one person cannot be deposed more than once without the court’s permission;
(2) Interrogatories – only to a party; limit is 25 Qs; written Qs and answers;
(3) Requests for Admissions – only to a party; written request for admissions; if admitted, conclusively established at trial;
(4) Request to Produce Documents – only to a party; papers/photos that are in their possession or control or custody;
(5) Mental or Physical Exam – (1) m/p condition of party is in controversy; (2) need a court order; (3) show good cause
Discovery (Immunity, Witnesses (E + L), Supplement, at Trial)
Immune from Discovery – (1) Work Product: any material prepared by counsel/agents for trial related to factual info (except: a substantial need for the material & cannot, without undue hardship, obtain the info by any substantially equivalent means) (absolute privilege: mental impressions, conclusions, opinions, legal theories of the case, UNLESS material concerns attorney’s alleged fraud/illegal conduct)
Witnesses – Names and locations of all possible witnesses and a list of all documents/materials they may use to testify
Expert Witness – (1) Expert called to trial: party must give the OP a list IDing each expert and expert must provide a report (opinions, basis for expert opinion, data/exhibits going to use, compensation; (2) Non-Trial Experts: exceptional circumstances that make it impractical to obtain that info w/o them
Duty to Supplement – any discovery info you realize could be incomplete or wrong, must be supp in a timely manner
Discovery Information at Trial – can use all info obtained during discovery at trial. Admissible substantively + impeachment.
Discovery Orders & Sanctions
When party fails to comply with discovery requests.
Orders - (1) Object to the Request: info is not relevant; (2) Protective Order: stop the discovery when purpose is to embarrass, undue burden, annoy [must confer w other side first]; (3) Compel Discovery: require party to respond.
Sanctions – Sliding scale based on severity of behavior. Start low and work up from there: (1) Fees and Costs: for time;
(2) Ordering certain facts to be established; (3) Dismiss Action or Hold Contempt
Pre-Trial Conferences
Conference of the Parties – Parties must meet to talk about case, settlement, discovery. Parties must submit discovery plan to the court. PURPOSE - Expedite litigation, improve quality of trial, and facilitate settlement
Scheduling Conference – Court must set a SC to set deadlines for motions. W/in 90 days of filing C & must issue a scheduling order.
Final Pre-Trial Conference – Judge may have FPTC to expedite trial or push settlement. If Court does it, must enter a pre-trial order that can ONLY be modified to prevent manifest injustice via objection in trial court
Temporary Restraining Order v. Preliminary Injunction
Temporary Restraining Order – can be granted without notice to OP. Granted if trying to prevent immediate irreparable harm. Expires at the time stated in the order but cannot be longer than 14 days. If want it to last longer than 14 days, then must get a PI or need to show good cause for extension
Preliminary Injunction – notice + hearing. Trying to prevent immediate irreparable harm. –> binds everyone who receives actual notice = parties, their officers/agents/employees/attorneys, anyone in active concert or participation w parties
Subject Matter Jurisdiction
Federal Court Jx = (1) Diversity Jx OR (2) Federal Q
Diversity Jurisdiction
(1) Parties are citizens of different states (2) P alleging more than $75k of damages [P’s perspective]
Different States – Citizenship = Domicile = (1) permanent home (2) intent to stay there.
* Foreigners/Aliens – U.S. citizen v. Foreigner/Alien = total diversity. Foreigner v. Foreigner = no diversity.
* Businesses – (1) where incorporated OR (2) principal place of business
Excess of $75k
* Multiple Claims –Single P v. single D has mult. claims, each less than $75k. If sum = more than $75k, = diversity
* Multiple Plaintiffs –1 P has a claim more than $75k, then diversity. If no P’s claim more than $75k, = no diversity.
Federal Question
Pertains to a federal law
Well-Pleaded Complaint Rule – Federal law in question must be specifically plead/obvious in P’s C
Supplemental Jurisdiction
Federal Court will allow additional parties/claims to join OG suit if OG suit meets SMJ, even if additional don’t.
- Federal Question – New claim/party must derive from a common nucleus of facts (i.e., same transaction)
- Diversity – (1) common nucleus of facts (2) Allowed: If a D is trying to add a claim/party as a supplemental jx but wouldn’t normally have SMJ on its own. Not allowed: If a P is trying to add a claim/party as a supp jx but wouldn’t have SMJ on its own
NEW Personal Jurisdiction via Long-Arm Statute (Bird’s Eye)
Constitutional =
1.Minimum Contacts
2. Does Not Offend Traditional Notions of Fair Play & Substantial Justice
Minimum Contacts
- Purposeful Availment - Conducting activities within a state, thus invoking the benefits and protections of its laws (intentionally trying to be in business) (e.g., puts a product in the stream of commerce plus purposefully targets that state)
- foreseeable - D could reasonably anticipate being sued in that state
Relatedness b/w claim & contacts:
- Specific jx = D’s activities w/in the state
- General jx = continuous, systematic, and so substantial that basically at home domicile
Offend Traditional Notions of Fairness & Substantial Justice
Fairness Factors – (1) D’s burden; (2) Forum state’s interest; (3) P’s interest in convenient & effective relief; (4) judicial system’s interest in efficient resolution of controversies; (5) states’ shared interest in furthering fundamental social policies
o Fairness of Service of Process – SoP limited to the in limits of the state where the district court sits or long-arm statute
Except: Bulge Rule – Service will be allowed w/in 100 miles of the F courthouse to 3rd party Ds and indispensable parties
TRADITIONAL Personal Jurisdiction
- Domicile
- Consent
- Physical Presence (exc. fraudulently/forcefully brought in state to be served w process or present in forum state to attend unrelated judicial proceeding)
Service
must be done by a non-party over 18 yo;
(1) Personal Service: direct & by hand;
(2) Substitute Service: leave @ house w someone of legal age (adult) who is likely to give to party;
(3) First-Class Mail: if D mails back an acknowledgment that they received service/statute allows mailing it to a GO on your behalf;
(4) Registered & Certified Mail;
(5) Newspaper: okay, if no other reasonable ways to give notice
(6) how state statute (where court located or where service is being made) provides
Corporations/Organizations – (1) state statute provides (where court located or where service is being made) or (2) must be served on an officer, agent, someone authorized to receive service, or high official in the corporation.
MUST PROVIDE ADEQUATE NOTICE AND MEETS DUE PROCESS –> BY MOST REASONABLE MEANS UNDER THE CIRCUMSTANCES
