Civil Procedure Flashcards
(129 cards)
1
Q
what is subject matter jurisdiction?
A
power of the court over the subject matter, kind, or nature of the lawsuit
2
Q
Can SMJ be waived or objected to?
A
Objections can never be waived; parties cannot consent to court’s lack of SMJ; court must dismiss on its own due to lack of SMJ even if there is no objection
3
Q
what are the types of SMJ for the federal courts?
A
fed courts are courts of limited jx, while state courts have general jx
two bases for federal SMJ:
diversity
federal question
4
Q
what is federal question jursidiction?
A
claim arises under federal law if the claim is created by federal law or created by state law but depends on a substantial federal question
5
Q
what are substantial federal questions?
A
constitutional
federal tax law
6
Q
what is the well pled complaint rule?
A
federal issue must appear on the face of the plaintiff’s complaint - must be part of plaintiff’s claim, not part of a defense
7
Q
what is the basis for diversity jurisdiction?
A
fed courts have diversity jurisdiction over claims where there is complete diversity and the amount in controversy exceeds $75,000
8
Q
how is a citizenship of an individual determined?
A
by their domicile
- where the person resides; and
- intends to remain or to return if not currently present
determined when the lawsuit is filed
9
Q
how is citizenship of a corporation determined?
A
can be a citizen of two states:
- state of incorporation
- state of principal place of business (HQ)
each state counts to determine complete diversity
10
Q
what is complete diversity?
A
no single plaintiff may be a citizen of the same state as any single defendant
(same side of the v can be the same - different sides of the v must be different)
11
Q
how is citizenship if unincorporated associations determined?
A
includes any organization other than a corporation
every single owner counts as a separate domiciled party for diversity
location of HQ is irrelevant
12
Q
foreign citizen not admitted as a permanent resident?
A
always diversity - may sue and be sued in diversity jurisdiction
13
Q
foreign citizen admitted as permanent resident of a state?
A
treated as US citizen for purposes of diversity
domiciled in state of residence
14
Q
US citizen domiciled in foreign country?
A
no diversity - cant sue or be sued in diversity jurisdiction
15
Q
decedents, minors, and incompetents?
A
real party in interest determines citizenship
decedent’s domicile controls - not executor
minor’s controls - not guardians
incompetent’s controls - not guardians
16
Q
what are the requirements for amount in controversy?
A
must exceed $75,000
plaintiff’s viewpoint governs: value of relief sought NOT value recovered at judgment
17
Q
when can a plaintiff aggregate to satisfy the amount in controvery?
A
single plaintiff can aggregate all claims against a single defendant whether the claims are related or not
single plaintiff can aggregate against multiple defendants, only when there is joint liability
multiple plaintiff’s generally cannot aggregate against a defendant
18
Q
what is the exception to the amount in controversy requirement?
A
no diversity jurisdiction if it appears to be a legal certainty that the plaintiff cannot recover an amount exceeding $75,000
19
Q
what are the state law exclusions from diversity jurisdiction?
A
matters involving domestic relations and probate
20
Q
what is supplemental jurisdiction?
A
a federal court with an SMJ claim has discretion to hear another claim over which the court would not independently have jurisdiction if both claims arise from a common nucleus of operative facts
21
Q
what claims are precluded under supplemental jurisdiction in diversity cases?
A
if the only primary jurisdictional basis is diversity, plaintiffs cannot use supplemental jurisdiction to bring additional claims against nondiverse parties
still allowed for:
- defendants brigning claims against nondiverse parties
- plaintiffs bringing claims against nondiverse parties if primary jx basis is fed question
- plaintiffs bringing claims against diverse parties, regardless of amount in controversy
22
Q
what is removal?
A
the act a defendant takes to move an action from state court to federal court
23
Q
what is remand?
A
the process of moving the case from federal court back to state court
24
Q
what are the general rules for removal?
A
defendants may remove an action from state court to the federal court that geographically embraces the state court by
- all defendants consenting; and
- filing a notice of removal in federal court within 30 days of service from which possibility of removal could be ascertained
only permitted if complaint is within fed court jx
25
what are the general rules for remand?
plaintiffs may file motion to remand within 30 days of filing notice to remove
court must remand even if no motion is filed if there is no SMJ over claim
26
what are the removal exceptions?
if primary basis is diversity, cannot be removed if
- any single defendnat is citizen of state where action was filed
- notice of removal filed more than a year after original action was filed
27
what is the erie doctrine?
choice of law question for federal courts to apply either state or federal law to resolve a dispute
28
what is the erie analysis?
if the conflict between federal and state law involves a federal question, then federal law governs
if the conflict doesn't involve that, state law governs where the difference between fed and state law would alter the outcome of the case
29
how does the full faith and credit clause affect civ pro?
a valid judgment entered in state court must be recognized and enforced in every other federal or state court
30
when are federal court prohibited from enjoining state court actions?
pending state court actions
state tax proceedings
state criminal prosecutions
31
what is abstention?
federal courts may abstain from adjudicating any state court issues that involve the interpretation of state law or the constitutionality of a state statute
a federal court may stay its own action in federal court pending the outcome of a state court's action or interpretation of its own laws
32
what is a temporary restraining order?
emergency order entered by the court fro up to 14 days to prevent irreparable harm and to preserve the status quo before a hearing can be held on a preliminary injunction
33
what notice is required for a TRO?
notice can be excused if movant shows specific facts resulting in irreparable harm such that notice would not be possible despite diligence before the harm occurs
security bond must be posted
34
what is a preliminary injunciton?
may be granted only upon notice to the adverse party
entered to maintain the status quo and to prevent irreparable harm before a trial on the merits can take place
35
what is personal jurisdiction?
power of a federal court over the defendant's person of property if
- the law of the forum grants personal jurisdiction; and
- the forum's law is constitutional
36
how does a forum's law dictate personal jurisdiction?
absent federal statute that expressly grants personal jurisdiction, fed court borrows the same PJ law of the state where its sits
Alternative basis for PJ
- consent
- presence
- long arm statute
37
what is express consent for PJ?
any verbal expression of consent to personal jursidciton in the forum state
38
what is implied consent for PJ?
failure of the defendant to object to personal jx in a proper and timely manner operates as a waiver to challenge
defendant must object within 21 days
if agrees to waive -- 60 days to respond if in US, 90 days if outside
39
what is service of process?
defendant must be actually and voluntarily physically present in the state while served with process
40
what does it mean to be essentially at home?
equivalent of being domiciled - typically used for corporations
41
what is a long arm statute?
allows a federal court to pull in out-of-state defendants who are not presetn and who do not consent
generally provides for specific personal jurisdiction over defendants who perform a specific act identified in the statute in the state from which the lawsuit derives
42
constitutionality of forum law?
PJ is constitutional if the defendant engaged in such minimum contacts that it would not be unfair to make the defendant come to the forum state to defend against a lawsuit
general PJ - present in forum or consent regardless of what lawsuit is about
specific PJ - purposefully availed itself to the benefits and protections of the foum and there is a connection between the availment and the lawsuit
43
what are the general service of process rules?
- anyone who is 18 or older and a nonparty is authorized
- authorized process server has 90 days from date of filing to serve
- individual must be personally served
- organizational def. can be served to an agent or by methods allowed in state where court is located
44
when is service of process proper?
1. if it was proper under the federal rules; and
2. it was constitutional under the due process clause
45
what are the proper methods of service?
Abode Service
Waiver
Agent Service
State Methods
Personal Service
46
what is abode service?
authorized process server must leave the process at the defendant's last and usual abode with a person who resides there of suitable age and discretion
47
What is waiver of service of process?
plaintiff mails the complaint to the defendant with a request that def waive formal service
defendants have a duty to avoid cost of formal service
extension of time to file - 21/60/90 day rule
48
what is agent service?
personal service on an agent who is authorized to accept it or who is a managing agent of the defendant; or
request the agent waive formal process
abode service doesn't work on an agent
49
what state methods are allowed?
fed courts may adopt any available method of process allowed in the state where
- the federal court is located; or
- process is to be made
50
what is personal service?
in-hand, direct delivery by authorized process server to the defendant
51
when is service of process constitutional?
if it is reasonably calculated to apprise interested parties of the litigation
no requirement that a person actually receive the notice so long as the method is constitutional
all methods of service authorized by FRCP are constitutional
52
what is proper venue?
federal district that is the most convenient and appropriate location for the lawsuit
53
when is the venue proper?
either
- any defendant resides if all defendants reside in that same state (individuals - domicile; corps - PJ; foreign citizens - anywhere)
OR
- any substantial part of claim arose or the property at issue is located
54
how does a defendant challenge an improper venue?
filing motion to dismiss or transfer
if not filed in first response, then challenge is waived. is granted:
- in court's discretion
- for convenience of parties and witnesses; and
- in interests of justice
if forum selection clause - choice of venue will be honored
55
what are the general requirements of pleadings?
complaint must contain sufficient information to place the adversary on notice claims that are plausible
claims involving fraud must be pled with particularity
56
What is Rule 11?
when any lawyer or pro se party presents any paper to a federal court, they certify that to the best of their knowledge and belief, after reasonable inquiry:
- the paper is not being brought for an improper purpose
- the contentions of law are warranted by existing law or a nonfrivolous argument to modify, extend or reverse existing law
- the factual contentions have supporting evidence or will garner supporting evidence upon further discovery
57
what are the time limits to respond to a complaint?
21 days unless waive formal process, then 60 days in US or 90 days if outside
58
what defenses are waived if failed to plead them in the first response?
motion to dismiss for lack of PJ
motional challenging service of process
motion to change venue
59
what must the answer do?
fairly and precisely meet every allegation in the complaint by
- admitting those that are ture
- denying those that are not true
- stating that there is insufficient information from which to admit or deny
60
affirmative defenses in answer?
must be pled or will be waived
61
what are the general rules for amendments?
liberal amendment policy in fed courts to ensure that pleadings conform to the evidence at trial
62
what is the right to amend?
pleader has absolute right to amend pleading once as of right up to 21 days after the service of the response to its pleading
63
what is leave of court?
after time to amend as of right has expire, party must seek the court's leave to amend
court will freely grant whne justice so requires and to serve the merits
only reason to deny is to avoid undue prejudice to party opposing amendment
64
how is a new claim added per the relation back doctrine?
amendment adding new claim relates back to the date of a timely filed complaint if the new claim derives from the same transaction or occurrence as the earlier, timely filed claims
65
how is a new party added per the relation back doctrine?
amendment adding new parties relates back to the date of a timely filed complaint if
- claim against new party derives from the same transaction or occurrence as the earlier timely filed claims; and
- new party acquired knowledge that but for a mistake in name the new party would have been sued within 90 days of filing of the timely complaint
66
what is joinder?
ways to add claims and/or parties to a single lawsuit in federal court
liberal policy of joinder
67
what is claim joinder?
party may join as many claims as it has against an adversary regardless of whether there is any connection between those joined claims (assuming there is jurisdiction)
68
what is party joinder?
party may join parties to a lawsuit if the claims involving those parties derive from the same transaction or occurrence or the same series of transactions or occurrences
69
what are counterclaims?
any claim for relief made against an opposing party after an original claim has been made
most are filed by defendants against plaintiffs
70
what is a permissive counterclaim?
counterclaim does not derive from the same transaction or occurrence as the original claim
defendant may file the claim as a counter claim
71
what is a compulsory counterclaim?
counterclaim that does derive from teh same transaction or occurence as the original claim
defendant must file claim as counterclaim in action against it and may not file claim in a later, separate independent action
72
what is a crossclaim?
party may file a crossclaim against an existing co-party if that crossclaim derives from the same transaction or occurrence that is the subject of the action
73
what is impleader (third-party claims)?
defendant may bring new claim against new third party if that new third party may be liable to the defendant for all or party of the defendant's same liability to the plaintiff
74
what is interpleader?
holder of a common fund may file a lawsuit against all of the rival claimants to its common fund
common fund plus rival claimants
typically seen in cases with insurance policies
75
what are the diversity requirements for interpleader?
traditional - complete diversity
statutory - minimal diversity: any two rivals are from different states and $500
76
what is intervention?
act of a nonparty seeking to become a party in an ongoing lawsuit by filing a motion to intervene
77
when is intervention as of right?
intervenor nonparty has the right to intervene if it has an interest in the lawsuit which would be adversely affected and not protected by the parties?
78
what is permissive intervention?
federal judge has discretion to permit intervention if the intervenor nonparty can show a commonality of issues between those in the ongoing lawsuit and those affecting the intervenor
79
what are indispensable parties?
non party who must be joined to a lawsuit if its absence would be unduly prejudicial to any party's right to a full and fair adjudication
80
what happens if there isnt SMJ over an indispensable party?
if nonparty cant be joined due to lack of SMJ, then court must decide in equity and good conscious whether to
- continue without nonparty and risk prejudice; or
- diss entire lawsuit for failure to join an indispensable party
81
what is a class action?
action in which a named party represents a class of commonly situated, absent parties
82
When does the Class Action Fairness Act establish alternative jurisdiction?
100 or more plaintiffs
amount in excess of $5M
any single plaintiff is from a different state than any single defendant
83
what are the four requirements for class action certification?
commonality - common issues of fact or law
adequacy - named party and counsel must adequately and fairly represent the class
numerosity - must be so big that joinder is impracticable
typicality - claims of named party must be typical of class
84
what are the additional requirements for class actions seeking monetary damages?
predominance - common issues must predominate over individual issues
superiority - class action must be the superior way of resolving claim
85
what are the constitutional requirements for class action?
for money, judge must
order notice that is reasonably calculated
afford class members opportunity to opt out
86
what is required for case management?
federal judge must hold a discovery conference to establish a schedule for discovery production and
may conduct other conferences to establish pretrial orders for the conduct of the trials
87
when is material discoverable?
if the method of discovery was proper under FRCP
materials sought are within the proper scope of discovery
88
what is a mandatory discovery planning conference?
parties must meet to discuss discovery plan
before any other discovery method may be used, each side without awaiting any request must promptly and automatically disclose:
- all potential supporting witnesses
- all relevant documents
- damages computation
- relevant insurance coverage
89
depositions?
only discovery device that can be used on a nonparty
10 per side
7 hours each
90
interrogatories
written questions served on a party, to be answered within 30 days from service in writing under oath
only 25 may be served
party has option to produce business records from whcih answer could be ascertained
91
request for physical or mental examination
only discovery method that requires a court order
granted upon good cause shown if the condition being examined is in controversy
92
request for documents or ESI
request for documents must be focused on documents within the possession, custody, or control of a parry who must respond within 30 days
ESI doesnt have to be intiatlly produced by a party if it can show it would be undul burdensome
court may order ESI on showing of good cause - benefits outweigh burden
93
request for admission
party may request that another party admit that certain facts are true or that certain documents are genuine
information is deemed admitted if not denied within 30 days
94
pretrial disclosure of expert witnesses
generally must be full disclosure of testifying expert's reports and credentials at least 90 days before trial
if intended solely to contradict other party, disclosure must be made within 30 days after other party's disclosure
95
pretrial disclosure of lay witnesses
must disclose lay witnesses and their topics of testimony at least 30 days before trial
96
what is the duty to supplement?
each party must automatically update or supplement prior disclosures within a reasonable time of discovering any new information
97
when is material within the scope of discovery?
if it is
relevant
proportionate
not privileged
98
what makes material relevant for discovery?
broad. liberal relevant to any part of any claim or defense; and it doesnt have to be admissible at trial
99
what makes material proportionate for discovery?
burden of discovery must be outweighed by the benefits of discovery
100
what is the work product doctrine?
any material that has been prepared for litigation
mental impressions are always privileged
all other forms are not discoverable unless showing of substantial need that an undue hardship would result without the work product
101
what are the three types of discovery sanctions?
failure to respond to a discovery request
failure to make automatic disclosure
violation of a court order
102
failure to respond to a discovery request
after certifying a good faith attempt to obtain discovery, party may:
- move to compel discovery; and
- receive costs and fees incurred in obtaining that discovery
103
failure to make automatic disclosure
may not use that information or evidence in any hearing unless can show substantial justification for failure to disclose
104
violation of a court order
court cna bar presentation of claim or defense, or evidence thereof
105
what is a motion for summary judgment?
must be filed within 30 days of closure of discovery
will grant if party opposing motion fails to present sufficient admissible evidence demonstrating a genuine issue of material fact for trial and judgment is proper as a matter of law
106
what is a motion for a judgment as a matter of law?
may be filed after the adversary has been heard, but before jury begin deliberation
court will grant if there is a legally insufficient evidentiary basis from which a reasonable jury could find in favor of the nonmoving party
107
what is a renewed motion for JMOL?
if party moved for JMOL before jury began deliberations, can renew motion within 28 days from judgment
same standard as JMOL
108
what is a motion for new trial?
may be filed up to 28 days after judgment
will grant if there were errors at trial affecting parties substantial trial rights or the verdict was merely against the manifest weight of the evidence
109
right to trial by jury
must file written demand for trial by jury within 14 days of service of last complaint or last answer that responds to jury request
failure to make timely demand waives right
constitutional 7th amend. right for monetary damages
110
jury composition
between 6-12 jurors, verdict must be unanimous
111
what challenges for jurors can be made?
for cause - lied during voir dire or cant be impartial
peremptory - 3 per side, for any reason except race or gender
112
what is an offer of judgment?
defendants may serve plaintiffs with formal offer to settle up to 14 days before trial, plaintiff then has 14 days to accept
if fails to accept - will incur costs of defendant, unless plaintiff does better at trial than offer
113
default judgments
once default is entered, if damages are certain - request clerk enter judgment
if not certain - prove up hearing
114
motion to set aside entry of default
may file within reasonable time of entry of default
will be liberally granted for good cause
115
motion for relief from judgment
certain grounds must be filed within reasonable time not exceeding a year
merits
equity
new facts
116
when is merit a ground for relief?
there was merit to a claim or defense, but claim lost due to mistake, inadvertence, surprise, excusable neglect, or judge's error of law
117
when is equity grounds for relief?
inequitable to let the judgment stand in the wake of fraud, misrepresentation, or misconduct by an opposing party
118
when are new facts grounds for relief?
new facts have come to light since the judgment that cast doubt on that judgment, and could not be earlier discovered with reasonable diligence
119
what is res judicata?
a claim that has been fully and fairly litigated to a final judgment on the merits cannot be relitigated by the same parties
120
what is collateral estoppel?
an issue that has been litigated and necessarily determined as party of a final judgment on the merits cannot be relitigated
121
what is the finality rule?
the parties are barred from relitigating claims or issues that the parties have fully and fairly litigated to a final judgment on the merits
122
appellate jurisdiction rule
jx generally limited to final orders entered by lower courts
123
exceptions to general appellate jx rule
partial final order
discretionary interlocutory appeals
124
partial final order exception
order that resolves some claims against some parties by not all claims against all parties
may be appealed immediately if lower court finds no just reason to delay
125
discretionary interlocutory appeal exception
entered during a lawsuit
may be appealed if both lower and appellate court find
- doubt about whether order was correct
- on a controlling issue of law; and
- such that appellate review would materially advance the litigation
126
time requirements for appeals
within 30 days of entry of judgment
filed in the lower court
127
standard of review for pure questions of law
de novo
128
standard of review for questions of fact
clearly erroneous
129
standard of review for case management
abuse of discretion
