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Flashcards in Civil Procedure Deck (41)
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What Are the Two Types of Federal Subject Matter Jurisdiction?

Federal Question (claims require a resolution of federal law)

Diversity (must be citizenship AND amount)

For diversity jurisdiction, courts will usually permit the amount to be satisfied by the plaintiff's claims, unless there is a legal certainty that the plaintiff cannot recover that amount.


How May a Party Establish Contact With a Jurisdiction?

Parties will be deemed to have contacts with a forum or jurisdiction through either:

Purposeful Availment: party must affirmatively reach out to forum through some conduct. An interactive website may qualify, while passive websites do not.


Foreseeability: suit or damages arising from conduct must be foreseeable.


What Are the Bases for Personal Jurisdiction?

Jurisdiction must be based on

1) minimum contacts established with the forum;
2) so that exercise of jurisdiction comports with traditional notions of fair play and substantial justice.

If the individual is present in the jurisdiction, exercise if almost always ok.


What is Issue Preclusion?

First case must have ended with:

1) a Final judgment on the merits;
2) litigation and determination of the Same issue;
3) the issue was Essential to the judgment; and
4) preclusion is sought against a Party to the first case.

Preclusion may be asserted by a defendant who was not a party to the first case where:

1) the plaintiff had a full and fair opportunity to litigate (defensive issue preclusion), or

By a plaintiff

1) who was Not a Party to the first case where the defendant had a full and fair opportunity to litigate;
2) Multiple suits were foreseeable;
3) the plaintiff could Not have easily Joined the original suit; and
4) there have been No Inconsistent judgments entered on the issue.


What is Claim Preclusion (Res Judicata)?

A theory used to dispose of claims that were actually litigated or could have been actually litigated.

A claim cannot be brought if both cases were brought by the same claimant against the same party, the first case ended with a final judgment on the merits, or both asserted the same cause of action or claim.

A Default judgment on the merits or judgment for abuse of discovery qualifies.

CA: lawsuits are considered the same action if the same property right is invaded. (E.g. A car accident creates both a personal injury and a property injury, therefore there are two separate rights that were invaded).


What Is Required for Interlocutory Review?

Court of Appeals has discretion to grant review of orders not affecting the ultimate merits of the case. Must be filed within 14 days of the order.


What is The Final Judgment Rule?

Parties have the right to appeal only from final decisions of the court on the merits of higher case. Must file within 30 days.

E.g., Denial of motion for remand is not a final order.

CA: A judgment may be final as to one of several parties even though it is not final to other parties, which is not the case in federal court.


What Are the Bases for a Motion for a New Trial?

Judgment is entered but circumstances require a new trial. Must be filed within 28 days of judgment.

Most common ground is for a prejudicial order at trial, also for excessive damages or inadequate damages where the figure shocks the conscience.

Remittur: Federal and CA, plaintiff may take lower amount or a new trial;

Additur: CA only (unconstitutional in federal court) defendant may pay more or take a new trial.


Motion for Judgment as a Matter of Law

Can be brought after the conclusion of opposing party's case. Granted if reasonable jurors could not disagree on the result. Viewed in light most favorable to non-moving party. Can also move within 28 days of the verdict.


What Are a Plaintiff's Rights to a Jury Trial?

Plaintiff has a right to a jury trial for issues at law in federal court. Must be demanded no later than 14 days after service of last pleading raising issues triable by jury. Parties receive unlimited strikes for cause and 3 peremptory challenges issued without discriminatory animus.


What is the Pre-Trial Conference Order?

A filing stating how the trial will proceed.

This document supersedes the pleadings.

Determines all issues to be tried and evidence to be presented.


When May a Plaintiff Voluntary Dismiss Its Own Complaint?

Plaintiff may voluntarily dismiss its claim without prejudice by filing notice of voluntary dismissal before defendant answers. Upon second voluntary dismissal by plaintiff, dismissal is with prejudice, even if first case was filed in state court.


What Are the Requirement to Certify A Class Actions?

Numerosity (too many parties for joinder),

Commonality (questions of law and fact must be common to the class),

Typicality (representative plaintiff must have claims and defenses typical to the class),

Adequacy of Representation (representative plaintiff will fairly and adequately represent the interests of the class).

Common questions on damages must predominate over individual questions, and class action must be the superior method for handling the issue.


What Is Required For a Party to Exercise Their Right of Intervention?

Absentee may intervene by right if

1) it was not joined;

2) its interest may be harmed; and

3) its interest is not adequately represented.


What Is Required for A Party to Exercise its Right to Impleader?

Defendant has a right to implead or include third party defendants for indemnity or contribution within 14 days of serving an answer, otherwise leave is required.

There is no need for diversity among plaintiffs and a third party defendant unless plaintiff has claims against 3rd party defendant. BUT these claims may defeat complete diversity.


When is Joinder Feasible?

Joinder is feasible if there is personal jurisdiction over the party and joinder will not defeat diversity. If absentee cannot be joined, the court must proceed or dismiss the case.

In determining whether to dismiss the case or proceed, courts will consider:

1) the availability of alternative forums;

2) the likelihood of harm to the absent party; and

3) whether the court can shape relief to avoid the harm.


Who or What is a Necessary Party?

A party is necessary if:

1) the court cannot complete relief among existing parties;

2) absent party's interest may be harmed if not joined; and

3) the absentee claims an interest that subjects a party to multiple obligations.

A joint tort feasor is not a necessary party.


Who or What is a Proper Party?

Parties that

1) may be joined;

2) arise from the same operative facts; and

3) raise at least one common question among the parties.


How May A Claim be "Related Back" to a Prior Date?

"Relating back" is the ability to amend a complaint after passing of the Statute of Limitations.

A party may join a new claim to an existing one if it relates to the same operative facts contained in the original complaint.

A party may join a new defendant if:

1) the claim against the new defendant is based on the same operative facts;

2) the defendant knew of the case within 120 days of filing; and

3) the defendant knew that they would have been named but for mistake in the complaint.


How May a Plaintiff Amend Its Pleadings?

Plaintiff may amend by right once within 21 days after defendant serves its first rule 12 motion.

Defendant may amend by right once within 21 days of serving answer.

If either party seeks to amend their filings after these dates, courts will look to

1) reason for the delay;

2) prejudice to opposing party; and

3) futility of the amendment.

Plaintiff may move to amend the complaint at trial based on evidence presented at trial about which it could not have reasonably known.


What Are the Three Types of Counterclaims?

Compulsory: arise from the same operative facts (transaction or occurrence) and must be filed or are waived.

Permissive: does not arise from same operative facts and may be filed with answer or asserted in separate case.

Cross-claim: claim against a co-party, always permissive.


When Must A Defendant File Its Answer?

Within 21 days of service of process.

If Defendant's Rule 12 motion is denied, it must serve an answer to the complaint within 14 days of ruling on the motion. The Defendant must admit, deny or waive each asserted fact.

Failure to deny an asserted fact constitutes an admission except on issues of damages.

Rule 12 Defenses are lack of Subject Matter Jurisdiction; Personal Jurisdiction; Insufficient Service of Process; Failure to Join an Indispensable Party; Failure to State a Claim; Improper Venue.


When Must A Defendant File Its Defenses Under Fed R. Civ. Proc. 12?

Defenses based on lack of personal jurisdiction, as well as improper venue and insufficient service of process must be filed with defendant's first filing or are waived.

Defenses based on the plaintiff's pleadings, such as failure to state a claim or failure to join an indispensable party may be asserted any time until the end of trial.

Defenses based on lack of subject matter jurisdiction may be asserted any time, even on appeal.


What Are the Requirements of Notice Pleading for a Complaint?

Must contain

1) a statement of grounds for subject matter jurisdiction;

2) a short and plain statement of the claim; and

3) a demand for relief.

The Complainant must allege facts supporting a plausible claim.

Fraud, mistake of fact, and special damages require a heightened standard of pleading whereby the complainant must point to specific facts alleging what the defendant knew and the steps it took to conceal or misrepresent this knowledge.


What Are the Requirements of Rule 11?

The filing of a document by an attorney constitutes a certification that to the best of their knowledge and belief after a reasonable inquiry,

1) the filing is not for an improper purpose;

2) the legal contentions are warranted and supportable; and

3) the factual contentions have evidentiary support.

Sanctions are available for deterrence, the party must be given an opportunity to be heard. There is a twenty-one (21) day grace period to fix any problems.


Geographic Limitation on Service of Process

Plaintiff may serve process on an individual outside of state only if state law allows it.

CA: Plaintiffs may serve parties to be sued in California out of state.


When is a Party Immune from Service?

Service of process is not effective while in a state for the sole purpose of serving as a witness or as a party in another case.

States may enact legislation that provides this sort of immunity.


What Are the a California Provisions on Waiver of Service?

Plaintiff may mail a complaint and two copies of a waiver form with stamped, prepaid addressed envelope for return by defendant.

If defendant executes within 30 days, defendant waives the service requirements and may file answer within 60 days.

If the defendant doesn't waive, the plaintiff is entitled to reimbursement of the cost of service and Defendant must answer within 21 days.


How Is Service of Process Acheived?

Delivery to defendant of summons and a complaint within 120 days of filing. Failure results in dismissal without prejudice.

Service ok if:

1) Given to defendant personally;

2) Left at defendant's usual abode or residence or with an individual of suitable age and discretion;

3) Agent if receiving service is within the scope of her employment; or

4) Any other method permitted by the state.


What is the Doctrine of Forum Non Conveniens?

Permits the dismissal or stay of a case where venue transfer is impossible because there is a more convenient court is in a different judicial system.

In determining whether to grant the motion, courts will balance:

1) the applicable law in both forums;

2) the interest of the local community in resolving the controversy;

3) the burden of jury service;

4) the location of witnesses and evidence;

5) and the adequacy of the the remedy in the alternative forum.

Requires very strong showing.