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Attack Cards > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

What is personal jurisdiction?

A

Power of the court over the defendant

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2
Q

What is subject matter jurisdiction?

A

Power of the court to hear the type of case the plaintiff is bringing

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3
Q

Personal jurisdiction requirements: 2 approaches

A

Traditional approach: Defendant was domiciled in forum, personally served while present in the forum, consent or waiver (appearing in action w/out objection)

Long arm statute: D has sufficient minimum contacts with forum state so not to offend traditional notions of fair play and substantial justice

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4
Q

What does it mean to have “sufficient minimum contacts?”

A

-Defendant PURPOSEFULLY AVAILS himself of benefits of the forum state, so it is FORESEEABLE that he may be sued there.

OR

-D’s contact with forum state is so SYSTEMATIC and CONTINUOUS that he is essentially home

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5
Q

How does a court obtain subject matter jurisdiction?

A
  1. Diversity of Citizenship

2. Federal Question

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6
Q

Federal question jurisdiction

A

Exists when the claim arises under federal law, the US constitution, or US treaties.

Plaintiff must be enforcing a a federal right. No jx if primary issues do not involve federal law

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7
Q

Diversity of Citizenship jurisdiction requirements

A
  • complete diversity of citizenship (no P can be from same state as any D)
  • amount in controversy exceeds $75k (amount based on damages alleged in good faith)
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8
Q

Aggregation of claims

A

P may aggregate his claims against one D or multiple Ds if all are jointly and severally liable

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9
Q

How is citizenship determined?

A

Party’s citizenship is determined by their domicile.

Natural person - domicile is where they live
Corporation - principal place of business AND where incorporated
Executor - citizenship of the decedent
Partnership - state of its partners

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10
Q

Supplemental jurisdiction

A

In a diversity of citizenship jurisdiction, supp jx can be used if claims do not amount to greater than $75k, but supplemental claims must arise from a COMMON NUCLEUS OF OPERATIVE FACTS.

Supp jx cannot be used if it violates complete diversity requirement

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11
Q

When is venue proper?

A

In any district where:

  • any district in which ALL Ds resides
  • if Ds live in same state, but different districts, then any district a D lives in
  • where a substantial portion of the claim occurred or the property is located, OR
  • if neither of the above apply, then proper in any district which ANY D is subject to the court’s PJ
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12
Q

Transfer of Venue

A

Venue may be changed to another forum if:

  • receiving court has PJ, SMJ and the convenience of the witnesses requires transfer, OR
  • the interests of justice require transfer
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13
Q

Removal

A

DEFENDANT may remove a case to federal court if:

  • fed court has SMJ
  • all Ds must agree
  • D is not a resident of the forum state, AND
  • removal is sought within 30 days of learning grounds for removal

Plaintiff CANNOT remove a case to fed court

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14
Q

Forum non conveniens

A

There is a far more appropriate court that exists elsewhere: need to balance factors

  • location of Ws and evidence
  • undue hardship for D
  • use of judicial resources
  • public policy
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15
Q

Service of Process and Notice requirement

A

Summons and copy Complaint must be served upon D within 90 days after Complaint is filed

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16
Q

Two ways to deliver service of process

A
  1. to the individual personally
  2. to someone of suitable age and discretion at the individual’s dwelling or usual place of abode and that person live there
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17
Q

How to deliver service of process to a corporation

A

Deliver to an officer, manager or general agent of the corporation

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18
Q

Preliminary Injunction

A

Purpose is to maintain the status quo pending determination of merits of litigation. Must provide notice to the other party and must show:

  • imminent irreparable injury (non monetary)
  • no adequate legal remedy
  • substantial likelihood of success on the merits
  • balance of hardships between P and D if injunction granted
  • not adverse to public interest
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19
Q

Temporary Restraining Order

A

Emergency remedy used to maintain the status quo of subj matter of litigation and prevents irreparable harm to P until the outcome of the preliminary injunction hearing. Must show same factors as in Preliminary injunction

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20
Q

Proper Complaint

A

Complaint must state

  • grounds for jurisdiction
  • facts supporting a PLAUSIBLE claim in which P is entitled to relief
  • and demand for relief
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21
Q

Affirmative Defenses

A

Responding party must include all defenses to the claims alleged in their FIRST RESPONSE. If not included and want to include later, pleading must be amended.

However, following defenses are deemed WAIVED if not included in the first response:

  • lack of PJ
  • improper venue
  • insufficient process, AND
  • insufficient service of process
22
Q

Amendments to Pleadings

A
  • P may amend its pleading once within 21 days after D serves first response
  • D may amend once within 21 days after D serves answer
23
Q

Relation Back Doctrine

A
  • When amendment includes a NEW CLAIM, new claim relates back to date of original filing as long as it arises out of the same transaction or occurrence
  • When amendment includes a NEW DEFENDANT, relates back as long as same transaction/occurrence, new party knew of original action w/in 90 days of filing, original claim was timely filed, and new party should have been named in the beginning
24
Q

Joinder of Claims

A

Two or more Ps may join their claims in a single lawsuit if:

  • right to relief comes out of same transaction or occurrence, AND
  • questions of law or fact are common to all Ps
25
Q

Cross Claims

A

Cross claim against a co defendant permissive if it arises out of the same transaction or occurrence

26
Q

Counter claims

A

All counterclaims must be stated in party’s pleading or are waived if

  • claim existed at time of service
  • claim arises out of same transaction or occurrence
  • no other party needs to be added
27
Q

Permissive Joinder

A

Party MAY join another person/entity as a P or D if:

  • arises out of same transaction or occurrence
  • common question of law or fact
  • SMJ for all claims
28
Q

Compulsory Joinder

A

Court MUST join party if:

  • that party is a necessary party, AND
  • joinder is feasible

Party is necessary when court can’t grant complete relief to all parties without them, OR party’s absence may impair their ability to protect their own interest

Joinder feasible if SMJ is not destroyed and PJ exists

29
Q

Intervention as of Right

A

Upon timely motion, court MUST permit a non-party to intervene if

  • non party has an interest in subject matter of action, AND
  • without non party may impair ability to protect their interest
30
Q

Impleader

A

D can join 3rd party who may be liable for all or part of P’s injuries

31
Q

Class Action Requirements

A

One or more members of a class action can bring suit on behalf of class if:

Remember “Class: Nerd, Common Typical Rich guy”

  • Numerous: too many Ps to join
  • Common fact or question of law
  • Typical: representative claims are same as class
  • Representative: adequate to protect interests of class
32
Q

Discovery: What is discoverable information?

A

All non privileged information that is RELEVANT and PROPORTIONAL to the needs of the case

33
Q

Depositions

A

Court conducted to permit depositions on parties and non parties

Parties need reasonable notice
Non parties need to be subpoenaed

34
Q

Spoliation and Duty to preserve

A

Once person reasonably anticipates litigation, person had duty to preserve all relevant evidence and not destroy evidence

35
Q

What are Initial Disclosures

A

Without having to make a discovery request, party MUST provide following info to other parties:

  • identification of ppl likely to have discoverable info
  • description of all documents and info party may use in trial
  • computation of damages, AND
  • insurance coverage
36
Q

Attorney Work Product Doctrine

A

All materials prepared by either an attorney or a client in anticipation of or during litigation. Protected from disclosure UNLESS:

  • materials are otherwise unavailable, AND
  • substantial need for materials but cant be obtained without undue hardship
37
Q

Pretrial Conference

A

Conferences prior to trial to consider claims and defenses, discovery plan, things to expedite the case or foster settlement. Pretrial order issued stating the plan for the trial.

38
Q

When can a pretrial order be modified?

A

Only when there is good cause and the objecting party fails to show that they would suffer any harm from allowing the modification.

39
Q

Motion for Summary Judgment

A

Made before case goes to jury trial. Asking judge to resolve case entirely or limited to certain issues (Partial SJ). Will be granted if:

  • there is no triable issue of material fact, AND
  • moving party is entitled to judgement as a matter of law
40
Q

Grounds for a Rule 12(b) Motion to Dismiss

A
  1. Lack of Subject Matter Jurisdiction
  2. Lack of Personal Jurisdiction
  3. Improper Venue
  4. Insufficient Process
  5. Insufficient Service of Process
  6. Failure to state a claim
  7. Failure to join a necessary party
41
Q

Motion for Judgement as a Matter of Law (JMOL)

aka Motion for Directed Verdict

A

Made during trial phase after the close of the opposing party’s evidence OR at the close of all evidence for judgment on merits. Granted if:

  • in considering the evidence in light most favorable to the NON-MOVING party
  • no reasonable people would disagree on the results of the case
42
Q

Renewed Motion for Judgement as a Matter of Law (RJMOL)

A

Made within 28 days AFTER the jury verdict. Must have made a Motion for JMOL first. Claims that the jury verdict is not reasonable. Same standards as JMOL

43
Q

Grounds for Motion for New Trial

A
  1. prejudicial error making judgement unfair (ie. incorrect jury instructions)
  2. new evidence surfaced that could not have been obtained with due diligence during original trial
  3. prejudicial misconduct
  4. judgement is against weight of evidence
  5. verdict was excessive or inadequate
44
Q

In general, when can sanctions be issued?

A

Failure to comply with the following warrants a sanctino (punishment)

  • claims not brought for improper purpose
  • legal contentions are warranted/non frivolous
  • facts supported by evidence
  • denials of facts are warranted (not lying to avoid culpability)
45
Q

When can Pretrial conference sanctions be issued?

A

When a party or attorney

  • fails to appear
  • substantially unprepared to participate
  • does not participate in good faith, OR
  • fails to attend conference or obey an order
46
Q

Final Judgement Rule

A

Federal courts can ONLY hear an appeal from a final judgement on the merits by a lower court. Judgement is final if it resolves the claims in the actions on the merits

47
Q

Collateral Order Doctrine

A

Exception to final judgement rule. Allows a party to appeal interlocutory rulings immediately if:

  • ruling decides on an important issue separate from merits, AND
  • issue would be unreviewable on appeal from a final judgment
48
Q

Writ of Mandamus and Prohibition

A

Use in exceptional cirumstances, when there is an abuse of judicial authority, party may seek writ of mandamus or prohibition to have a federal appellate court to review the trial court’s rulings.

49
Q

Writ of Mandamus

A

Compel lower court to do something the law requires

50
Q

Writ of Prohibition

A

Stop a court from doing something law prohibts

51
Q

Res Judicata - Claim Preclusion

A

Bars bringing a case to trial if:

  • Same parties
  • ended in a valid final judgement on the merits
  • asserts the same cause of action
52
Q

Collateral Estoppel - Issue preclusion

A

Prevents a party from re litigating an issue if:

  • against someone who was a party in the first case
  • first case ended in a valid final judgement on merits
  • issue actually litigated and determined
  • issue was essential to the judgment

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