Civil Procedure Flashcards
(112 cards)
1
Q
Is there PJ over D?
A
Same process in state court and federal court in the forms state
- falls within a state statute
AND
- satisfies constitutional due process requirement
- does D have such minimal contacts with the forum state that PJ does not offend traditional notions of FairPlay and justice
2
Q
Constitutional justification of PJ
A
- Contact :
a. purposeful availment : D ‘s purposeful availment of benefits from the forum state
b. foreseeability: It is foreseeable that D will be sued in this state
- Relatedness:
a. If D’s contacts with the forum state cause the event of harm
Indirect: Specific PJ available if fairness satisfied
b. D has such substantial contacts with the state that it is enough that the event of harm relates to the contact: Specific PJ available if fairness satisfied
c. Not caused or related to D’s contacts - the nOnly General PJ possible if fairness satisfied
- Fairness: Specific PJ
a. Burden on D
b. State’s interest
c. Plaintiff’s interest
3
Q
General PJ
A
Person :
- state domiciled (physical presence and intent to permanently remain there) or
- state where served with process at
Corp :
- inc at AND
- PPB at
4
Q
Process
A
- summons : courts notice of suit and timing for response
and - copy of complaint
5
Q
Service of process
A
- by non party 18 yrs or older
- by 90 days after compliant filed in the US (extension for outside US)
6
Q
Service on Individual
A
- Personal service : in hand direct to D
- Substituted Service : At usual place of abode with someone who resides there wit suitable age and discretion
- Registered agent :
- State law provided methods of service at state where court sits and state served
7
Q
Service on Business
A
- Delivered to registered agent or officer or manager or general agent
- State law provided methods - where court sits or where served
8
Q
Service on incompetent person, minor
A
ONLY by methods provided by state law
9
Q
Waiver of Service
A
P should mail to D
1. copy of the complaint
2. 2 copies of the waiver form
3. return envelope with postage paid for
If D mails back waiver in 30 days (60 days if outside US) - the service is waived and D has to respond to complaint in 60 days.
10
Q
Proof of Service
A
Server files and affidavit: failure to file affidavit doesn’t invalidated service though
11
Q
Immunity from service
A
If D goes to State X to serve as witness, party, or atty in a diff case , D cannot be served there
12
Q
Diversity SMJ
A
- Federal Question - original jurisdiction claim arises from fed law, constitution, fed statute
- Diversity : complete diversity between all Ps and all Ds AND alt in controversy > 75000
13
Q
Change Domicile
A
- physical presence
- intent to permanently make that your home
14
Q
Corporation citizenship
A
- Place incorporated
- state that is with Principal place of business (nerve center)
15
Q
Unincorporated business entities citizenship
A
citizen of each state in which each of its partners hold citizenship
16
Q
SMJ: Amount in controversy
A
- has to be >75000
- P’s word in good faith UNLESS its not possible as a legal certainty
17
Q
Claim aggregation
A
- Adding 2 + claims by P to meet the amount in controversy
- Same P and same P even the claims are unrelated if they have SMJ otherwise
18
Q
SMJ: When Equitable Relief sought - Amount in controversy
A
P’s viewpoint Test : If equitable relief granted, does the relief have a value >7500 to the P?
D’s viewpoint: If granted, is it going to cost D >75000 to comply and provide the relief
19
Q
Exclusion From Diversity Jurisidction
A
Even if SMJ met by diversity/alienage, Fed courts decline cases on :
divorce,
alimony,
child custody,
action to probate an estate
20
Q
SMJ: Federal Q
A
P’s claim arises under federal law in the P’s well pleaded complaint
The P is enforcing a federal right
21
Q
Removal How
A
D files a notice of removal at the fed court with grounds for removal, with a copy to state court
Within 30 days after first paper (e.g., complaint) served that shows removability
22
Q
Limitations on Removal based ONLY on Diversity SMJ
A
NO removal if
1. by Plaintiff ,
2. by D but there is at least 1 in-state D (citizen of the state at which filed first) , or
3. More than 1 year after case was filed in state court.
P can voluntarily dismiss claim against a non-diverse or in-state D1 and then the other D2 can file notice to remove within 30 days of service of dismissal of the D1 if its within 1 yr from complaint filing
23
Q
Additional Claims : Supplemental JXN
A
- Check for FQ Jurisdiction over additional claim
IF no - Check for diversity Jxn
if no - Check for CNOF : e.g. claim arises from same transaction or occurrence as underlying case
24
Q
Additional Claims : Supplemental JXN LIMITATION
A
Is claim bright by P?
- No Suppl jxn UNLESS multiple Ps and one P’s claim (though diverse) does not meet amt in controversy requirement
25
Law Applied : Erie Doctrine
Step1 : Is there federal law available on point that directly conflicts with with state law? : YES - apply federal law : supremacy clause
Step2: If no federal law on point, apply state law if substantive
1. conflict of law rules
2. elements of claim or defense
3. Statutes of limitation
4. Rules for tolling SOL
5. std for granting new trial because jury's damages were excessive or inadequate
Step3: No federal law and issue not in list 2: determine if substantive
- Outcome determinative
- balance of interests : strong state interest or fed interest
-avoid forum shopping
26
Venue for Fed filed cases
Residential :
- where all Ds reside if all Ds in same state , any district where at least 1 D resides), For business entities - wherever they have PJ
Transactional:
- where substantial part of events giving rise to the claim arise or substantial portion not land in the claim located
27
Venue for Removed cases
The fed district that embraces the state court where first filed
28
Transfer of cases
Within Federal court system
Transferee / receiving court must have PJ and venue must be proper (w/o waiver by P)
29
Transfer from a Proper Venue: Factors
Public factors:
- what law applies
- what community should be burdened with jury duty
desire to keep a local controversy in local court
Private factors:
- convenience for Ds and witnesses
Except if based on contractual forum selection clause - then only public factors analyzed
30
Transfer from Improper Venue
Transfer for the interest of justice
Transferee / receiving court uses its own choice of law
OR
Court may dismiss
31
Forum nonconveniens
Can't transfer because proper court is outside the judicial system
Cost may hold it in abeyance
OR
Dismiss
32
Complaint
1. statement of grounds for SMJ,
2. brief statement of claim showing P is entitled to relief sought, and
3. demand for relief
33
Pleading Std
Sufficient facts to support a plausible claim
Unless special pleading : alleging Fraud or special damages
34
Motions addressing form Under Rule 12
12(e) - motion for more definite statement (when complaint is so vague or ambiguous that D simply cannot respond ( need this motion before response though)
12(f) Motion to strike - asking court to remove irrelevant /redundant/immaterial things in a pleading ( complaint/answer, etc)
35
Waivable Motions under 12(b)
1. lack of personal jurisdiction
2. improper venue
3. improper process
4. improper service of process
36
Defenses under Rule 12(b) - NOT WAIVED can be raised later
Motion to dismiss for
1. failure to state a claim for which relief is sought
2. failure to join an indispensable party
3. Lack of SMJ
37
D's answer:
Admit
Deny
Insufficient information
38
Right to amendment
P has right to amend complaint ONCE within 21 days of service of D's answer
D has right to amend answer once within 21 days of service of D's answer
39
Amendment with Courts leave
After first amendment : P pr D may ask the courts leave to amend, and court must grant leave if justice so requires
1. Length of delay
2. prejudice to other party
3. futility of amendment
40
Variance
New evidence appears at trial that doesn't match initial pleading and counter party does not opbject
. party can seek to amend the initial pleading to conform to the evidence at trial
41
Relations Back of an amended pleading in a claim
Join a claim not originally asserted
Relates back to original filing date IF
- amended pleading concerns the same conduct, transaction or occurrence as the original pleading
42
Relation back to amended D (misnomer)
Relates back if
- amendment concerns same Conduct, t/o as original
- D had knowledge of the case such that D can avoid prejudice
- D knew or should've known that but for a mistake, she would have been the original D
43
Supplemental Pleadings
- contain what happened after the pleading was filed
- No right - must have a motion requesting the courts leave
44
Rule 11 Signature Requirement
Signature of a signor certifies to their best of their knowledge and belief AFTER REASONABLE INQUIRY that
- paper filed is NOT for an Improper Purpose
- legal contentions are warranted by law or a non frivolous argument to change the law
- factual contentions and denials of fact have evidentiary support or like to after further investigation
Party makes this certification every time they present a position to court - continuing certification
45
Rule 11 Violation
Sanctions to deter repeat conduct - against:
- party
- attorney
- attorney's firm
Court can also move sue spent to sanction : but will issue order to show cause
46
Motion for sanctions
if party 1 violates, party 2 serves motion for sanctions on party 1 : party 1 has 21 days to fix the mess and avoid sanctions
if not done so - can then be filed with the courts
47
Joinder of Ps and Ds
1. must arise from same CNOF under the same t/o and
2. raise at least one common issue of fact or law
48
Claim Joinder
1 P can join as many claims against the 1 D as long as they have SMJ (even if additional claim is unrelated to original claim)
49
Joining absentee parties
D can move to force joining by an additional absentee party :
1. is the absentee a necessary party ?
2. If necessary can they be joined?
3. If can't be joined, can the case proceed anyway?
50
Necessary absentee party:
1. without the absentee court cannot accord complete relief among existing parties (worried about multiple suits)
OR
2. The absentee's interest may be harmed if not joined
OR
3. Absentee claims an interest that puts a party (typically D) at rick of multiple obligations
51
Joining a Necessary Absentee - Feasible?
1. Does court have PJ over the absentee?
AND
Wil althere be SMJ over the claim by absentee (after aligning them to which side P or D is appropriate)
52
Joinder of necessary absentee - Not feasible
1. is there alternate forum available
2. actual likelihood of harm to absentee?
3. can court shape relief to avoid that harm to absentee?
53
Counter claims
Compulsory counterclaims :
- arise from the same transaction or occurrence as P's claim
- must be raised in the same case - otherwise waived and barred
Permissive Counterclaim:
- Not from the same T/O as P's claim
- not required to be raised in the same case - not waived if not raised
54
Crossclaims
Claim raised against a co-party (same side of the v)
55
Impleader - Third Party -practice
Permissive impleader claim
Defending party moves to bring in a third party a third party defendant (TPD) who is alleged to be responsible for at least part of the alleged liability and relief sought
56
Impleader : Indemnity
TPD is responsible for entire liability completely shifted to TPD
57
Impleader Contribution
TPD is responsible for part of liability- pro-rata portion of claim covered by TPD
58
Intervention by non-party
Non party absentee moves to bring herself into the case
- if absentee's interest may be harmed if not joined
- interest is not adequately represented by the current parties
59
Interpleader
If separate 2+ actions arise that have become double liability against a D , interpleader suit permits the D ( a stakeholder ) to require the claimants in the 2 + actions to litigate among themselves to figure out who among them has the valid claim
Procedural interpleader under Rule 22: requires:
1. complete diversity between stakeholder and all adverse claimants and >75000 in issue
or
2. Fed Q J
Statutory interpleader:
- only requires diversity between any two contending claimants and $500 in issue
60
Class Action: Initial Requirements
1. Numerosity
- there are too many class members for practicable joinder
2. commonality:
- there is some issue in common among all class members
3. Typicality:
- the class rep's claims are typical of the claims of the class
d. Representative Adequate
- Class rep will fairly and adequately represent the class
61
Types of class actions
Type 1: Prejudique
- class treatment is necessary to avoid harm either to class members of non-class party
Type 2: Injunctive or declaratory
- action seeks injunctive of DJ relief because D treated members alike
Type 3: Common Questions or Damages
- 1. common questions predominate over individual questions
-2. class action is superior method to handle the dispute (e.g., mass torts)
62
Discovery: Initial Disclosures
Required:
1. Identities of persons with discoverable information that the party may use to support claims / defenses
2. Documents and things party may use to support claims/defenses
3. Computations of Relief + supporting documents ESI
4. Insurance Coverage
63
Penalty for failure to initially disclose
Cannot use it in evidence unless shown that non disclosure was harmless or justified
64
Required Disclosure about Expert Witness
1. Identities of Expert Witnesses
2. EWs written report with
a. opinions EW will express
b. bases for the opinions
c. facts used to form the opinions
d. EQs qualifications AND
e. payment
65
Consulting Witness
Not Expert Witness and discussions with CW not discoverable absent "exceptional circumstances"
66
Required Pre Trial Disclosures
Within 30 days before trial:
1. Information about their evidence incl identity of witnesses who will testify live or by deposition,
2. Documents and ESI
3. Other things party intends to introduce at trial
67
Discovery tools
1. Request for admissions
- written request that other party admits/denies, or claims insufficient information
- must respond with in30 days if service
2. Interrogatories :
- Written Qs to be answered under oath
- only to parties
- Max 25 unless court ordered
- to be answered in 30 days from service
- contention rogs asking about party's legal contentions are permitted
3. Request for production of documents
- indefinite number
- to make available for review and copying docts/things incl ESI
- must respond within 30days from service
- only parties served with request for pen but non-parties subpoena for information
4. Depositions : limited to 10, max 1day - 7hrs
68
Use of Depositions
Depositions used at trial to:
1. Impeach a witness
2. Any purpose if deponent is adverse party
3. Any purpose if deponent unavailable for trial
69
Medical Exam / Physical Exam
Court Order required to compel a party or person in party's custody/control
Requesting party must show
- persons health is in actual controversy and
- good cause
70
Scope of discovery
Standard : anything that is relevant to a claim or defense and proportional to the needs of the case
Discoverable >> admissible
71
Work Product Doctrine
- Material prepared in anticipation of litigation
- protected in fed court -
1. Qualified Workproduct: may be discoverable if
- requesting party can show substantial need and undue hardship in obtaining the sam in alternative ways
2. Absolute Workproduct: never discoverable
- opinion work product - made of mental impressions conclusions, or legal theories of disclosing party
72
Asserting Privilege or Work Product Doctrine
Party can withhold discovery or seek protective order based on privilege or work product doctrine
- Must expressly claim privilege or WP doctrine protection, and
- describe the material in detail in a Privilege Log ( listing of material, author, recipient, and privilege/protection claimed) for judge to determine if protection/privilege applies
73
Discovery incomplete response
Court can compel party to comply by court order
- party seeking discovery attempts to resolve amicably first failing which moves court to compel
- violation of compelling order - merit sanctions
eve including attorney's fees from bringing the motion
74
Discovery No response
court can enter merits sanctions + costs even without order compelling answers
75
Failure to preserve ESI on litigation hold
Party can get adverse inference order ( jury must presume the non produced / lost document had information unfavorable for the party that lost it) ONLY if other party can show
- loss of ESI was with intent to deprive the information
76
Preliminary Injunction
Appealable Order
- Maintains status quo until trial
Need to show:
1. Likelihood of success on the merits
2. irreparable injury if not for injunction
3. balance of hardship tilts in favor of movant
4. injunction is in the public interest
77
Temporary Restraining Order
Order maintains status quo until Preliminary injunction hearing
max 14 days ( can be extended for another 14 days)
78
Ex parte TRO
Only if
- applicant files under oath showing that no TRO will suffer immediate and irreparable harm even if waiting until hearing
- Applicants atty certifies to efforts to give oral / written notice to other party OR why such notice should not be required in this case
- If TRO issued - need to post bond to cover costs for other party is the TRO was wrongfully issued
79
Entry of default
Notations by court clerk on docket sheet in case ONLY when
- P moves for entry of default
- demonstrates D failed to respond in time
- until default entered : D can respond at any time (even if it went past the 21 days requirement)
Effect: Entry of default cuts off the window for D to respond
but doesn't entitle P to relief yet ( only after Default judgment)
80
Default Judgement
Generally P must apply to court for entry of default judgment
UNLESS
can be entered by clerk if
- D hasn't made any appearence/response
- claim is for a sum with certain amount in money
- P gives Affidavit (sworn statement) of the sum owed, and
- D is NOT a minor or incompetent
81
Motions to set aside Default or default judgement
D may move to set aside by showing:
1. good cause - excusable neglect
2. viable defense ( a trial o the merits is preferred)
82
Rule 12(b)(6) M to dismiss for failure to state a claim OR M for judgment on the pleadings
moved before D's ans - 12b6
After D's answer : M for judgement on the pleading
Facts as plead - if true- do not state a plausible claim for relief
83
R 56 - M for Summary Judgment
SJM Standard :
1. no genuine dispute of material fact
2. judgement entitled as a matter of law
84
When to move for SJ
Within 30 days after close of discovery
85
Matters considered in SJM
Evidence through
1. affidavits
2. declarations
3. answered to interrogatories
4. Deposition testimony ( Except not in VA)
86
R26(f) Pretrial Conference when
at least 21 days before courts scheduling order unless court states otherwise
87
R26(f) Pretrial Conference what
parties must meet and confer:
- production of required initial disclosures, claims , defenses, settlement offers, preservation of discoverable information
-
88
R26(f) Pretrial Conference Then?
Within 14 days after the meet and confer :
parties must present to court a detailed summary plan with
- views/proposals on timing
- issues on discovery
89
Final Pretrial conference
Detemine
- issues to be tried
- evidence to be proffered
recorded on pretrial order
90
Motions in limine
Pretrial motion without the jury present to move court to disallow presentation of certain evidence before the jury
91
Jury Demand
Must be explicit
in writing
within 14 days after service of last pleading addressing a jury triable matter
92
Jury Selection - Challenges
1. For cause challenges : as many as needed to rule out impartiality of juror
2. Peremtory challenges: 3 per side
- cannot be discriminating on race, gender
93
Jurors
Min 6 Max 12 (unless parties stipulate otherwise)
94
Jury Instruction conference
Judge may hold - "off the record" conference to discuss potential / proposed jury instructions
Then an on record conference before the final instructions are presented to jury
- what instructions will be given
- reasoning to not adopt proposed instructions by a party
Objection to jury instructions must be made at the on record conference to preserve right to appeal ( clear error std of review)
95
JMOL or Directed Verdict
Standard : Reasonable people could not disagree and find for the counter party given the evidence presented , therefore judgement must be granted as a matter of law
When : anytime before submitting to jury but court may not grant until opposing party has been heard
96
Renewed JMOL or JNOV after the verdict
Same std as JMOL : Reasonable jury will not disagree and find for counter party
therefore this jury was unreasonable
97
RJMOL or JNOV Timing
within 28 days after judgment is entered
provided party moved for JMOL before verdict
98
M for New Trial Timing
Within 28 days after judgement entered
99
M for New Trial std
Granted if :
- judge gave erroneous jury instruction
- new evidence came to light after judgement that could not have been obtained previously eve with due diligence
-juror/party/lawyer misconduct discovered after judgement
- judgment is against the weight of evidence (serious error of judgement)
- damages are excessive or inadequate
100
Remittur but no Addittur in fed courts
Shocking the conscience standard
Remittur: offer choice to P : either reduce payout or get new trial
Additture: offer choice to D - either add to the payout given by jury or new trial
- may be allowed in state courts BUT not in Fed Courts
- in VA - additurs if D consents, if not new trial
101
Formal offers to settle
D can offer formal settlement offers upto 14 days before trial
102
Order to set aside judgment or M for relief from judgment
Grounds - Timing
1. Clerical Error - Anytime
2. Mistake, excusable neglect (incl. viable defense) - Reasonable time (<1yr)
3. Fraud, misrepresentation or misconduct by opposing party - Reasonable time (<1yr)
4. New discovered evidence (not discoverable earlier even for M for new trial even w due diligence) - Reasonable time (< 1yr)
5. Judgment is void (ct had no SMJ) - Any time reasonable
103
Appeal: Final Judgement rule
Losing party has right to appeal from
- a final judgment that determines the merits of the case
- order states it is a final order and no reason to delay
104
Notice of Appeal
- Filed at the district court
- less than 30 days from entry of judgment
105
Exceptions to appeal : non final orders
1. Preliminary Injunction
2. permanent injunction
3. Under interlocutory appeal act if district judge certifies that
-order is final and it involves a controlling issue of law
- about which there is substantial difference of opinion AND
- court of appeals agrees to hear it
106
Collateral order Doctrine
Appellate court has discretion to review an issue if:
- it is distinct from the merits of the case,
- involves an important legal question AND
- is essentially unreviewable if parties await final judgment
107
Appellate Std of review
Q of Law : Denovo
Q of Fact : Bench Trial - Clearly Erroneous
Jury Trial: No reasonable jury would have same finding
Discretionary Rulings : Abuse of discretion
Whether of not to give a jury instruction : abuse of discretion
Content of a jury instruction : de novo
108
Claim Preclusion or Res judicata
1. Same P against same D in case 2 as in case1
2. Valid final judgment on the merits in case 1
- doesn't same without prejudice ,
- was not for lack of PJ or SMJ, or for improper venue, process, service of process, and
- was not dismissed for failure to win indispensable party
3. Case 2 asserts the same claim as in case 1
109
Issue Preclusion of Collateral Estoppel
1. Valid final judgement in case 1 on the merits
2. same issue was raised in case 1 as in case 2
3. issue was actually litigated in case1
4. issue was central / essential to final judgement in case 1
5. raised against same party or one with privity (Due process factor)
6. raised by same same party or one with privity (mutuality) - and its fair and equitable to allow preclusion of the issue
110
Claim Preclusion RJ - what is a same claim
Majority and Fed law : claim is a right to relief arising from a transaction or occurence
Minority - primary rights doctrine: property claims diff from personal injury claims
111
Non Mutual Issue preclusion
Defensive : D of case 2 asserts preclusion - Most states and Fed ok with this
Offensive : P of case 2 asserts preclusion - most states not ok BUT fed law is OK
Fairness Factors :
- did D of case 2 have a fair and full opportunity to argue their case in case 1
- was D motivated to fully argue in case 1
- did D of case 2 have chance to join in case 1
- was case 2 anticipated?
112
