Civil Procedure Flashcards
(11 cards)
Venue
Determining proper venue
Special Rules
Venue Transfer: Venue in original district is proper; Venue in original district is improper
Venue determines in which fed. district the case may be brought
Determining proper venue—venue is proper where:
* Any D resides—provided all Ds also reside in the same state
* Location of claim or property—in any fed. district in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is situated; or
* D subject to PJ (fallback)
Special Rules
* If removal is based solely on diversity jx, then an aciton may be removed only if no D is a citizen of the state in which the action was filed
* < 1 year has passed since the action commenced
Venue Transfer
Venue in original district is proper—court may order transfer to another fed. district court based on interest of justice, convenience of parties and witnesses
* Where it might have been brought; or
* To which all parties have consented
Venue in original district is improper—court must dismiss the case or transfer the case in the interest of justice or dismiss the case
Complaint
Requirements Federal Rule; Timing; Special Pleading
Answer
Requirements
Complaint
Requirements
* Statement of jx—why court has SMJ
* Statement of the claim—short and plain statement of P’s claim, showing entitlement to relief
* Demand for judgment
Special Pleading
* Claims alleging fraud or mistake and claims for special damages must be pleaded with particularity
Answer
Requirements—answer must:
* Respond to allegations of complaint—available responses:
* Admit allegations
* Deny allegations
* Lack sufficient information to admit or deny allegations
* Raise affirmative defenses—certain defenses are waived if not explicitly pleaded in the answer
Ameding Pleadings
Rule for Amendments
Relation Back
Certification of Pleadings
Sanctions
Amendment as a matter of course—may occur either:
* No later than 21 days after service or
* If the pleading is one which requires a response, within 21 days of service of the responsive pleading or Rule 12(b) motion
Amendment without right
* Leave will be granted freely when justice requires (lenient standard); courts look to:
* Length of and reason for movant’s delay;
* Potential prejudice to parties; and
* Futility of amendment
Relation Back
* New claim—amendment will relate back if the new claim arose out of the same transaction or occurence as the original pleading
* New party—amendment concerns the same transaction or occurence as original pleading, and
* New D receives notice within 90 days after the original pleading was filed and
* New D knew or should have know that, but for a mistake, he would have been named originally
Certification of Pleadings
* Filing is not for an improper purpose;
* Legal contentions are warranted by law or non-frivolous argument to change law; and
* Factual contentions have evidentiary support
Sanctions
* Safe harbor—Rule 11 motion is served but may not be filed witht the court for 21 days, creating a safe harbor
* Hearing required—court must give attorney a chance to be heard before imposing sanctions
If no response pleading required, 21 days after serving or if a responive pleading is required, then party may amend within 21 dys after being served with answer/12(b) motion
★★Joining Parties★★
Permissive Joinder: Requirements; Jurisdiction
Compulsory Joinder: Requirements; Meaning of feasible; Required parties
Intervention: Intervention as of right; Permissive internvetion; Jurisdiction
Interpleader: Rule interpleader; Statutory interpleader
☆Permissive Joinder☆
* Ps and Ds may join and be joined in one action if:
* Same transaction or occurence and
* Common question of law or fact
Jurisdiction—court must have jx over joined parties and claims
☆Compulsory Joinder☆
* An absent person must be joined, if feasible, when either:
* Court cannot grant complete relief
* Prejudice the absent person’s interest or
* Result in multiple or inconsitent obligations
Meaning of feasible—joinder is feasible if:
* There is PJ over the required party
* SMJ will be preserved (i.e., joining the absentee will not destroy diversity)
Required parties—if a required party cannot join, ask whether the case can proceed without the required person or should be dismissed
☆Intervention☆
A nonparty may seek to to intervene in an onging suit, either as a P or D
Intervention as a right—must be allowed if nonparty’s interest will be harmed if not joined and no existing party will adequately represent that interest
Permissive intervention—allowed in a court’s discretion if the nonparty has a claim or defense that shares a common question of law or fact
Jurisdiction
* A nonparty cannot intervene unless the court maintains SMJ over the case
* Supplemental jx will not cover diversity intervention
☆Interpleader☆
Allows a property holder to force all potential claimants to that property into a single lawsuit
Rule interpleader
* Compelte diversity required
* SMJ, PJ, and Venue requiremetns are the same as for any other federal case
Statutory interpleader
* Only minimal diversity required—one claimant must be diverse from at least one other claimant + amount in controversy ≥ $500
* Nationwide PJ and service of process
* Venue is proper in any district where any claimant resides
Re: P seeks to join non-parties as co-Ps or co-Ds
★★Joining Claims★★
Permissive Joinder
Counterclaims: Jurisdictional requirement; Compulsory counterclaim; Permissive counterclaim
Crossclaims: Requirements; Jurisdiction
Impleader: Requirements
Permissive Joinder
* Party may join as many claims as he has regardless of whether there is any connection between those joined claims (assuming there is jx)
Counterclaims
An offensive claim (usually raised by D against P), which may be pleaded in D’s answer to the complaint
Jurisdictional requirement—D must ensure the court has jx to hear any counterclaim
* Note—compulsory counterclaims will always have supplemental jx, but permissive counterclaims rarely have supplemental jx
Compulsory counterclaim—same transaction or occurrence
* Required in answer—must be filed in D’s answer or it will be waived
Permissive counterclaim—different transaction or occurrence
* Not required in answer—may be filed with D’s answer to P’s complaint, but does not have to be
Crossclaims
* Offensive claims asserted by a co-party against another co-party (e.g., P sues D1 and D2; D1 may assert a cross-claim against D2)
* Requirements—same transaction or occurrence
* Cross-claims must arise from the same transaction or occurrence as the original claim
* Never compulsory
Jurisdiction—must have independent basis for SMJ
* Cross-claims will almost always satisfy supplement jx requirements b/c they must arise from same transaction or occurrence
Third-Party Claims (i.e., Impleader)
Allows D to join a non-party who may be liable to D for all or part of the claim brought by P against the original D
Requirements—D may implead a TPD by filing a third-party complaint within 14 days after serveing his answer
* After 14 days, D must get permission from court
* D’s claim under impleader must be derivative—D cannot claim that TPD is solely liable to P
* Jurisdiction—court must have PJ over impleaded party; court must also have SMJ, and will have supplemental jx
Mandatory Disclosures: Initial disclosures; Timing; Duty to supplement; Expert disclosures, Pretrial disclosures
Parties must disclose certain information, irrespective of requests from the opposing party
Initial disclosures—parties must disclose:
* Sources of discoverable information—parties must disclose witnesses and documents that they may use to support their claims or defenses
* Damages—computation of damages claimed
* Insurance
Timing—with 14 days of parties’ mandatory meet & confer
Duty to supplement—parties must supplement their mandatory disclosures if the produced information becomes incomplete or incorrect
Expert disclosures—at least 90 days before trial, parties must identify experts who may be used at trial and produce a report containing experts’ opinion, data use, qualifications, etc.
Pretrial disclosures—parties must give detailed information about evidence to be used at trial at least 30 days before trial
Discovery Scope and Limits
Scope
Work Product Rule
Protective Orders
Scope
Material is disocverable if—non-privileged, relevant to a claim and (2) proportional to the needs of the case
Work Product Rule—a party may not discover material prepared in anticipation of litigation unless the party shows:
* Substantial need for material; and
* Inability, without undue hardship, to obtain a substantial equivalent by other means
Protective order—upon a showing of good cause, the court may enter orders to protect the parties from annoyance, harrassment, embrassment, or undue burden or expense resulting from discovery
Voluntary Dismissal: Dismissal without leave of court; Dismissal with leavel of court
P may voluntarily dismiss his case, either with or without leave of court
* Dismissal will be without predjuce, unless an exception applies
Dismissal without leave of court—allowed before D serves an answer or motion for summary judgment
* Dismissal is without prejudice provided this is the first time that P has dismissed his case; otehrwise it is with prejudice
Dismissal with leave of court—required if there has been an answer, motion, or prior dismissal
* Court has discretion to grant dismissal on terms and contiiosn it deems proper
* Dismissal is without prejduice unless court states otherwise; the second voluntary dismissal is “with prejudice”
* Pending coutnerclaim—if D has failed a counterclaim, P cannot voluntarily dismiss without D’s consent
JMOL
RJMOL
Motion for a New Trial
Motion to Set Aside Judgment or Order*
Post-Trial Procedure
JMOL
* Motion brought before case submitted to jury
* Standard—court will grant JMOL if there is a legally insufficient evidentiary basis from which a reaosnably jury could find in favor of the nonmoving party
Renewed JMOL
* If JMOL was originally filed, party may renew its motion for JMOL within 28 days of the judgment
* Standard—same standard as for JMOL
Motion for a new trial
A court may grant a new trial to prevent a miscarriage of justice
* Must be filed within 28 days after entry of judgment
Grounds for new trial — unlimited, but potential errors include:
* Prejudicial misconduct — of a party, attorney, juror, etc.
* Newly discovered evidence
* Excfessive or inadequate damages
* Error at trial that renders judgment unfair (e.g., judge mistatates law, gives wrong jury instructions)
Motion to Set Aside Judgment or Order
A court may relieve a party from judgment within a reasonable time—NLT one year of entry of judgment—based on:
* Mistake, inadvertence, or exclusable neglect
* New evidence undiscoverable at time of trial
* Fraud, misrepresentation, or misconduct by opposing party
Appeals
Appellate courts & standard of review
Final Judgment Rule
Interlocutory Appeals: Interlocutory orderes reviewable as of right; Interlocutory Appeals Act
Appellate courts & standards of review
* Questions of law—de novo
* Questions of fact—will not be disturbed unless:
* Bench trial—clear error
* Jury trial—no reasonable jury would have made the finding
* Discretionary matters (e.g., evidentiary rulings)—abuse of discretion
Final Judgment Rule—appeal may only be taken from a final judgment, meaning trial court has made an ultimate decision on the merits of the entire case; otherise, appellate court lacks jx
Exceptions:
* Injunctions
* Receivers—orderes concerning appointment of receivers
* Certification by district court —appellate courty may hear appeal if trial judge certifies that the order involves a controlling issue of law with substantial ground for difference of opinion
* Class action certification
* Mandamus
* Patent—orders where only an accounting is left in the case
Collateral order exception—appellate court may hear an interlocutory appeal on an issue if it is:
* Too distinct from the merits of the case
* Too important to be denied review; and
* Would essentially be unreviewable if parties waited for final judgment
Deadlines
14 days
21 days
28 days
30 days
60 days
90 days
14 days
* File answer after pre-answer motion is denied
* File third-party complaint w/o leave of court after the original answer is served
* Respond to an amended pleading
* Demand a jury trial after the least pleading is served
21 days
* Serve pre-answer motion or answer after service of the complaint, counterclaim, or crossclaim
* Amend pleadnig as a matter of right after the pleading was served
* Serve reply to answer
28 days (most post-trial filings)
* Renew motion for JMOL
* Move for a new trial
* Move to alter or amend a judgment
30 days (most discovery deadlines)
* File a notice of removal after receipt of the initial pleading
* Move to remand after the notice of removal is filed
* Submit pretrial disclosures before trial
* Respond to interrogatories, requests for production, and requestst for admission
* Move for summary judgment after the close of discovery
* File a notice of appeal after entry of judgment
60 days
* File answer or pre-answer motion after service of process is waived
* Serve answer after service of process on a U.S. agency or employee
90 days
* Serve process after the complaint is filed
* Disclose expert witness materials before trial
