Civil procedure Flashcards
Discovery generally
Discovery is generally permitted with regard to any non-privilege matter relevant to any parties claim or defense in the action
Information within the scope of discovery need not be admissible and evidence to be discoverable. The test is whether the information sought is relevant to any parties claim or defense.
Work products without the impressions of an attorney may be discoverable if the other party shows a substantial need for the parties, and cannot without undue hardship of change, there, substantial equivalent, by other means
Spoliation of evidence
This is the negligent or intentional destruction, or significant alteration of evidence required for discovery when litigation is reasonably anticipated, even if it has not yet been commence, potential lead against in possession of potentially relevant evidence, have a duty to preserve such evidence
Once a duty to preserve evidence is triggered the party, and possession of the evidence must take reasonable measures to preserve it
A party may be subject to sanctions for failing to take reasonable stuff. Super serve it.
Consequences for spoliation of evidence
Sanctions are authorized only if the information cannot be restored or replaced by additional discovery and determining sanctions, the courts will consider the prejudice to another party, in the intent of the party that failed to preserve the evidence
A court may order the cost of retrieval to the party who destroyed the evidence, and then no further sanctions could be imposed if they fail to preserve it, and it can’t be restored or replace the court may order alternate sanctions, limited to the courts discretion of those necessary to cure prejudice
If they find it was intentional, then the available sanctions include a presumption that the destroyed or lost information was unfavorable to the sanction party a jury instruction that it may, or must presume the information was unfavorable to the party, or an entry of default judgment against the party
How can you determine if the federal court has removal jurisdiction when diversity is Matt and the defendant is not from the state where the action was originally filed
Generally, the defendant, and any civil action filed in state court has the right to remove it to the district court, for the district in which the state court action was filed as long as a civil action is within the original jurisdiction of a US District Court
Explain the change of venue motion and seeking transfer to federal court
For the convenience of the parties, and in the interest of justice, a district court may transfer any civil action to any other district or division, where it may have been brought, then use proper any judicial district in which any defendant resides, or in a judicial district in which a substantial part of the events are emissions on with the claim is based occurred
When transfer a cell on the basis of a form selection clause in a contract, the clause is a corded respect
If the venue have an action is transferred when the original venue is proper, what law will the court use?
Generally the court to which the action is transferred, must apply the laws of the state of the transferor court, including the states rules regarding conflict of law
When venue is transferred based on a valid form selection clause, the transfer record must apply the law, including the choice of law rules of the state in which it is located
In a diversity, federal action when can a defendant not remove the case to federal court
And actions were federal jurisdiction is based on diversity. A defendant cannot remove the case to federal court, if the case was filed in a state court, and the defendants home state.
Personal Jurisdiction
In general, due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. For in personam jurisdiction, a defendant’s contacts with a forum state must be purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there. The scope of contacts necessary depends on the relationship that the cause of action has with the forum state.
Burden is on defendant to make a compelling case that fairness considerations outweigh the existence of minimum contacts
Supplemental JDX over crossclaim on federal question
When the district court’s subject matter jurisdiction for a claim is based on the existence of a federal question, additional claims against the same party can be heard by the court through the exercise of supplemental jurisdiction if the common-nucleus-of-operative-fact test is met.
However, a district court has discretion to decline to exercise supplemental jurisdiction (i) over claims that raise new or complex state law issues or that substantially predominate over claims within original federal jurisdiction; (ii) when the claims within the court’s original jurisdiction are dismissed; or (iii) if there are other compelling reasons for declining jurisdiction in exceptional circumstances.
Common nucleus of operative fact
Claims arise out of the same nucleus of operative fact if they are part of the same case or controversy and should be tried together.
