Civil Procedure Flashcards
(88 cards)
1
Q
FQ Jurisdiction
A
Claim arises under federal law and under the well-pleaded complaint rule, the federal question must be presented on the face of P’s complaint. Raising a defense or filing a counterclaim under federal law does not trigger FQ jurisdiction
2
Q
Diversity
A
Complete diversity, AIC exceeds 75k
3
Q
When can P aggregate claims?
A
Can aggregate all claims against one defendant to meet the AIC requirement, can aggregate all claims against multiple defendants if the defendants are jointly liable
4
Q
Specific cases with no diversity jurisdiction?
A
Probate actions and domestic relation matters
5
Q
Individual citizenship
A
domicile
6
Q
Corporate Citizenship
A
place of incorporation AND PPB
7
Q
Unincorporated Associations Citizenship
A
Considered a citizen of every state of which its members are citizens
8
Q
Class Action Citizenship
A
Citizenship of each named party in the class who are suing count for diversity purposes
9
Q
Supplemental jurisdiction
A
allows a federal court with Valid SMJ over a case to hear additional claims over which the court would NOT have jurisdiction if all the claims constitute the same case or controversy. Claims constitute the same case or controversy if they arise out of a common nucleus of operative fact
10
Q
Supplemental jurisdiction and compulsory counterclaims
A
A compulsory counterclaim is a counterclaim that arises out of the same T/O as the original claim. Federal court sitting in diversity has supplemental
11
Q
Supplemental jurisdiction and permissive counterclaims
A
A permissive counterclaim is a counterclaim that does NOT arise out of the same T/O. It can only be heard if it independently satisfies diversity j
12
Q
Supplemental jurisdiction and cross claims
A
A cross claim is a claim filed by a plaintiff against a plaintiff or by a defendant against a co-defendant.A federal court sitting in diversity j has supplemental jurisdiction over a cross claim if the cross claim arises out of the asme t/o as the original claim
13
Q
Removal
A
Allows defendant to move a case from state court to federal court if the case could have originally been brought in federal court
14
Q
Removal Procedure
A
By the defendant, within 30 days of learning the grounds for removal (not one year from commencement of action unless P acted in bad faith), and for diversity cases, D cannot remove if he is a citizen of the state where the court is
15
Q
Service
A
A civil action is commenced by filing a complaint with the court. After the plaintiff files a complaint, a summons MUST be served on the defendant with a copy of the complaint within 90 days after the complaint is filed.
16
Q
Who can serve summons and complaint?
A
Anyone who is 18 and not a party
17
Q
Service can be done by
A
(1) serving person individually; (2) leaving a copy of each at dwelling with someone of suitable age and discretion; or (3) delivering a copy of each to an agent authorized by appointment or by law to receive a service of process (4) however state law allows
18
Q
Serving a foreign individual
A
(1) delivering a copy of the summons and complaint to the individual personally; (2) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt (3) other means not prohibited by international agreement, as the court orders
19
Q
Serving a corp, partnership, or association
A
Served by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process
20
Q
Venue
A
Determines the judicial district in which a lawsuit may be filed or commenced. Proper in a district where: (1) any defendant resides, if all the defendants reside in the same state; (2) a substantial part of the events or omission giving rise to the claim occurred, or a substantial part of property that is the subject of the action occurred; or (3) judicial district in which ANY defendant is subject to personal jurisdiction
21
Q
Residence of foreign defendants
A
not a resident of the United States, may be sued in any judicial district
22
Q
business entity residence for venue
A
A business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question
23
Q
Change of venue with proper venue
A
If venue is proper, the court may nonetheless transfer the case for the convenience of the parties or witnesses to any court where the case could have been originally filed
24
Q
Improper venue
A
Court must dismiss the case or transfer where it could have been filed
25
choice of law and proper original venue
If transferor court had proper venue and it is a diversity case, the transferee court must apply the law that would have been applied in the district court that transferred the case
26
choice of law and improper venue
in a diversity case, the transferee court must apply the choice of law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case
27
Abstention
Generally, a federal court with valid SMJ is required to adjudicate controversies before it. However, a federal court may abstain from hearing a case or stay the matter pending the outcome of a state court action in order to avoid intruding upon the powers of a state court
28
Preliminary Injunction
Preserves the status quo of the parties, may be prohibitory or mandatory. Prohibitory prohibits or restrains a party from doing something, while mandatory requires the d to engage in an affirmative act
29
Contents of injunction
order must state the reasons why it was issued, state its terms specifically, and describe in detail the acts or acts restrained
30
Requirements for preliminary injunction
Must establish likely to suffer irreparable harm, likelihood of success on the merits, balance of equities of the parties (p likely to suffer greater harm), and injunction is in the best interest of the public
31
TRO contents
state why it was issued, state its terms specifically and describe in detail the act or acts restrained or required
32
TRO requirements
same as PI
33
TRO and ex parte notice
Unlike a preliminary injunction, the court may issue a TRO without written or oral notice to the non-moving party if: (1) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party an be heard in opposition AND (2) atty certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required
34
Complaint
(1) grounds for SMJ, (2) short statement of the claim that shows pleader is entitled to relied and (3) a demand for judgment for relief
35
pre answer motion
may raise:
3Ps and a V
AND
lack of SMJ, failure to state a claim, failure to join an indispensable property
36
Answer
Must state a specific denial or admission of each allegation in the complaint OR a general denial of all allegations with specific admissions if necessary and any affirmative defenses
37
Timing of answer
no pre-answer motion, 21 days. pre-answer motion, within 14 days after the court's denial or postponement of the motion
38
Amendments to Pleading by right
once as of right within 21 days if no responsive pleading is required. If a responsive pleading required, the party may amend within 21 days of whichever event is earlier: (1) service or responsive pleading OR (2) being served with a Rule 12(b) motion
39
Amendment by leave of court
Court can permit an amendment to a pleading when justice so requires. Generally, a court will permit a proposed amendment if the proposed amendment: (1) is not subject to dismissal and (2) would not result in undue prejudice to the opposing party
40
Relation back doctrine
Determines whether an amendment to a pleading will relate back to the date of the original pleading
41
relation back for new claim
If the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same T/O as original pleading
42
relation back for new party
Amended to include a new party or change the name of a party, relate back to the date of the original pleading if: (1) it asserts a claim that arose of of the same T/O as original; (2) party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced in defending his case on the merits; and (3) the party to be brought in my amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party's identity
43
compulsory joinder
He he necessary:
(1) without him, court cannot accord complete relief among the existing parties
(2) his interests are harmed if he is not jointed or
(3) his absence subjects a party (usually D) to a risk of multiple suits
**joint tortfeasors are never necessary*
Can he be joined?
(1) PJ
(2) SMJ
What if he can't be joined?
Court has to decide: is there an alternative forum available? What is the actual likelihood of harm to the absentee and can the court shape relief to avoid the harm to the absentee?
44
Permissive joinder
parties may join as plaintiffs or be joined as defendants when: (1) some claim is made by each plaintiff against each defendant that arises out of the same T/O AND (2) there is a question of fact common to all parties
45
Interpleader
Allows a plaintiff or a defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute
46
Interpleader by a plaintiff
Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though: (1) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR (2) the plaintiff denies liability in whole or in part to any or all of the claimants
47
Interpleader by a defendant
defendant exposed to similar liability may seek interpleader through a cross-claim or counterclaim
48
Intervention as of right
Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, AND the disposition of the action without him may impair his ability to protect that interest
49
Permissive intervention
Intervention is permissive when the applicant's claim or defense and the main action have a question of law or fact in common. Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court
50
Class Action
CANT: commonality (common question of law or fact), adequate representation, numerous so that joinder of all members is impracticable, and typicality (named parties' interests are typical of the class)
51
Class will be certified if
(1) separate actions would create a risk of inconsistent results or impair the interests of unnamed parties; (2) the defendant has acted or refused to act on grounds applicable to the whole class and injunctive or declaratory relief is appropriate for the class as a whole; or (3) common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication
PID: prejudice, injunction, damages
52
Rule 26(f) conference
Parties must confer as soon as it is practicable to: (1) consider their claims and defenses, the possibility of settlement, initial disclosures, and a settlement plan AND (2) submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, and the timing of discovery, and relevant orders that may be required by the court
53
Initial disclosures
Within 14 days, need:
(1) names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;
(2) copies or descriptions of documents, ESI, and tangible things that are in the disclosing party's possession or control that the disclosing party MAY use to support its claims or defenses, UNLESS the use would be solely for impeachment;
(3) a computation of damages claimed by the disclosing party and copies of materials upon which the computation is based AND
(4) copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
54
Scope of discovery
relevant, proportional, not privileged
55
Limitations on discovery
court is required to limit frequency or extent of discovery if the court determines that (1) discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive or (2) the party seeking discovery had ample opportunity to obtain the information by discovery in the action
56
Interrogatories
Any party may serve no more than 25 written interrogatories on any other party. May NOT be used on nonparties. Must be answered fully and separately under oath by the party to whom they are directed, unless the responding party objects by stating the specific grounds for the objection. The responding party must serve its answers and any objections within 30 days after being served with interrogatories
57
Pretrial Conference Sanctions
Court may issue sanctions if a party (1) fails to appear; (2) fails to participate in good faith; or (3) fails to obey a pretrial conference order.
Dismissal of an action is a severe sanction, and generally it is only appropriate when a party's conduct is serious, repeated, extreme, or otherwise inexcusable
58
Rue 11(b) Sanctions: Signature
Every paper must be signed by at least one attorney, MUST strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.
59
Rue 11(b) Sanctions: Representation to Court
(1) not for improper purpose; (2) claims are warranted by existing law or by a non-frivolous argument; (3) factual contentions have evidentiary support
60
Rue 11(b) Sanctions: Opportunity to Correct
Before a party may seek sanctions under Rule 11, the party must serve on the opposing party a motion that describes the specific conduct that allegedly violated the rule. The opposing party must be given 21 days to withdraw or correct. If 21 day passes, pleading is not corrected, motion for sanctions filed with court
61
Rue 11(b) Sanctions
Court may issue sanctions for failing to comply with above requirements; sanctions may include non monetary directives, an order to pay a penalty into court, or, if imposed on motion, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation
62
Motion for Summary Judgment
May be filed at any time until 30 days after the close of discovery. Must be granted if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that: (1) no genuine dispute of material fact exists and (2) the moving party is entitled to judgment as a matter of law. May be partial; not appealable
63
JMOL
May be filed by either party after the close of the nonmoving party's evidence OR at the close of evidence. Will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.a JMOL is a prerequisite for the making of a RJMOL
64
RJMOL
no later than 28 days after the entry of judgment, may only be raised if a JMOL was previously filed. Motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.
65
Motion for new trial
(1) error made at trial makes judgment unfair; (2) newly discovered evidence existed at the time of trail was excusable overlooked and would likely have altered the outcome of the trial; (3) prejudicial misconduct of counsel, a party, the judge, or a juror; (4) a verdict that is against the clear weight of evidence; (5) a verdict that is based on false evidence such that a new trial is necessary to prevent injustice; OR (6) a verdict that is excessive or inadequate
EMUs NEver Prejudge Weight, especially if false evidence. That would be damaging.
(error makes unfair) (newly discovered evidence) (prejudicial misconduct) (against weight of evidence) (based on false evidence) (damages excessive or inadequate).
66
Verdict is excessive
Court may order a new trial or remittitur. Additurs are not permitted in federal court, the only option is a new trial
67
Res Judicata (Claim Preclusion)
To bar a claim under res judicata: the original claim must have resulted in a final judgment on the merits; (2) the original and later field causes of action bust be sufficiently identical, or related to the same transaction or occurrence, and (3) the claimant and the defendant must be the same
68
Collateral Estoppel
To bar an issue under collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated in the prior action; (3) the issue must have been determined by a valid final judgment on the merits; and (4) the determination of the issue must have been essential to the prior judgment
69
Collateral Order Doctrine
The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue: (1) that is separable from and collateral to the merits of the case; (2) involves a serious and unsettled legal question; and (3) would be effectively unreviewable if the court waited until final judgment to hear the claim or issue
70
Effect of a Default Judgment
A default judgment will have a preclusive effect if the court had valid personal and subject matter jurisdiction. States vary as to the extent of preclusion a default judgment has, but generally, a party is barred from asserting defenses or compulsory counterclaims that could have raised in that original action
71
Statutory requirements for PJ
States generally require that the defendant: (1) is present or domiciled in the forum state at the time of service; (2) has given express or implied consent to jurisdiction; or (3) meets the requirements of the forum state's long arm or other statute
72
Constitutional requirements for PJ
(1) contacts; (2) relatedness; (3) fairness
73
PJ contacts
Contacts must show that defendant: (1) purposefully availed herself of the forum state's laws; (2) knew or reasonably should have anticipated that her activities in the forum made it foreseeable that she may be "haled into court there"
74
PJ relatedness
If the claim is related to the defendant's contact with the forum, the court is more likely to find that jurisdiction as to that claim is fair and reasonable; OR if the claim is unrelated to the defendant's contact with the forum, the court must have "general jurisdiction" over the defendant, which requires him to be "at home"
75
PJ fairness
Court will consider: (1) whether the forum is "so gravely difficult and inconvenient" that the defendant is put at a severe disadvantage; (2) the forum state's legitimate interest is providing redress for its resident; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in efficiency; and (5) the share interest of the states in furthering social policies
76
14 days
Print Jams!!
P - post 12(b) Answer
R - required initial disclosures
I - impleader after answer
N - notice of hearing
T - TRO expiration
J - jury demands
A - amended pleading response
M - more definite statement
77
21 days
CASAS
CA - Complaint (or counterclaim) Answer
S - Strike
A - Amend Pleading
S - Sanction Filing Delay
78
14 days JCAT
jury, class action certification appeal, expiration of TRO
79
21 days WAAF
Withdraw pleading after Rule 11 motion, amend, answer or file
80
28 Days Try again
RMJOL & new trial
81
30 3RA
removal, remand, return request to waive, appeal
82
60 days
Time to answer the complaint or file a 12(b) motion if D waived service of process
83
90 days
General time limit for service of process
84
1 year
Outer time limit for removal based on diversity
85
If MEE fact pattern discusses a case that takes place in federal court, start with
"Federal district courts may exercise personal jurisdiction to the same extent as the courts of general jurisdiction of the state in which the district court sits."
86
If the issue is specific jurisdiction
"State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state's long-arm statute and the Due Process Clause of the Fourteenth Amendment of the US Constitution."
Then:
"The Due Process Clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice."
87
Klaxon doctrine
A federal district court sitting in diversity must apply the choice of law approach prevailing in the state in which it sits.
88
Fairness factors for nonmutal offensive issue preclusion
whether: (1) the party to be bound had a full and fair opportunity to litigate in case 1; (2) the party to be bound had a strong incentive to litigation case 1; (3) the party asserting issue preclusion could have easily joined to case 1; (4) there had been no inconsistent findings on the issue.
