Civil Procedure Flashcards
(44 cards)
FQ
Available when P alleges complaint arising under federal law
DJ
(i) complete diversity b/w Ps and Ds and (ii) AIC exceeds $75K—can aggregate state law claims to get to this
• Partnerships: domiciled where their partners are (even limited partners)
SMJ
• Subject matter jurisdiction in federal court based on a federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint. The defendant’s answer or defense is not relevant because the existence of a defense based on federal law will not give federal question jurisdiction
Supplemental Jurisdiction
Fed ct has discretion to exercise supplemental juris when they arise from a common nucleus of common fact and are such that P would ordinarily be expected to try them in a single judicial proceeding
• Cannot be used to overcome complete diversity requirement
PJ
Ps submit PJ where they file the complaint;
Worry about this over Ds: Courts (fed and st) have PJ over person “at home” there (Cos it could be based on number of stores if “reasonable and fair”)
Min. Contacts with the State: In addition to sufficient minimum contacts with the forum state, personal jurisdiction must not offend “traditional notions of fair play and substantial justice.”
Venue
Venue is proper: (1) in any district where a D resides if all Ds reside in the same state or (2) where the cause of action(s) arose
If neither 1 or 2, then court with PJ over Ds—operating a number of stores in “fairness and reasonableness” assessment—based on a specific juris theory
Special Appearance
Must be filed before any other plea, pleading or motion (or simultaneous) to contest venue.
Removal
Under 28 U.S.C. section 1441, a defendant may remove (within 30 days of service) an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.) However, a case may not be removed on the basis of diversity jurisdiction if a defendant is a citizen of the state in which the action was filed.
The federal removal statute provides that the notice of removal should be filed in the federal district court for the district that geographically encompasses the state court from which the action is being removed
Erie Doctrine
Under the Erie doctrine, in a case based on diversity of citizenship, the federal court must apply the substantive law of the state in which the court sits. However, the court will apply federal law to procedural issues. Federal Rule of Evidence 302, which follows the Erie doctrine, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense.
FQ then apply federal law
Complaint
The federal pleading rules generally require the pleader to assert short and plain statements in the complaint to put the other side on notice of the claim being asserted; detailed assertions of facts underlying the claim are generally not required.
In a party’s pleadings, performance of conditions precedent may be alleged generally. Denial of performance or occurrence must be alleged specifically and with particularity.
A party may move to strike parts of a pleading before responding to a pleading (or within 21 days after service of a pleading if no responsive pleading is permitted).
Service of Process
Service may be made on individual by leaving a copy of summons and complaint at the individual’s dwelling or usually abode with someone of suitable age who resides there. (Q57); registered agent; or on person
Fed rules allow service of process made as per rules of state where fed ct sits or state in which service is to be effected.
Answer
To avoid default judgment, must file answer by 10am on the first Monday after expiration of 20 days from date of service
Pretrial Conference
the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.
Within 14 days thereafter, they must submit a proposed discovery plan to the court.
Must reveal ID of eyewitnesses if either D may call the witness at trial or if P requests the eyewitness’ identity
3rd Party Claim
o A 3rd party D may assert a claim against P if the claim arises out of same T/O as P’s original claim (Q34)
o D cannot assert a 3rd party against another party unless they are seeking recovery for themselves (indemnity) (Q28)
o If the promisor has made an absolute promise to pay the third-party beneficiary (and not simply a promise to pay whatever the promisee owed him), the promisor cannot assert the promisee’s defenses. When a third-party beneficiary sues the promisor on the contract, the promisor may raise any defense he would have had against the promisee.
3rd Party Petition
Served on newly named 3rd party D, if more than 30 days have passed requires leave of the court
Subbing a New 3rd Party D
filed if (i) the claims in the amendment arise from the same transaction or occurrence as the claims set out in the original pleading; and (ii) within the time allotted for serving the original complaint (90 days from filing per Federal Rule 4(m)), the new defendant received such notice of the action that it will not be prejudiced in defending on the merits and knew or should have known that the action would have been against it (the new defendant).
Intervention
When an applicant wants to intervene in an action because she has an interest in the property or transaction that is the subject matter of the action, and the disposition of the action may impair her ability to protect that interest, such an intervention is called an intervention of right. A permissive intervention is available when the applicant’s claim or defense and the main action have a question of fact or law in common.
Counterclaim
A compulsory counterclaim (a claim that arises out of the same transaction or occurrence as the plaintiff’s claim) does not need to meet the jurisdictional amount requirement for diversity jurisdiction.
A permissive counterclaim (a claim that arises out of an unrelated transaction) must meet the jurisdictional amount requirement
Cross-Claim
As a general rule, a party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim. However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party.
Joinder
Permissive Joinder: parties may join an action as plaintiffs or be joined as defendants whenever some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transaction, and there is a question of fact or law common to all the parties
Mandatory Joinder: absentee must be joined as a party to the case if it is determined that he has an interest in the subject matter of the litigation that could be affected by a judicial determination in the case, the court has personal jurisdiction over the absentee, and joining him to the action would not destroy diversity jurisdiction or venue
Amended Complaint
freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c).
Impleader
is a procedural device before trial in which one party joins a third party into a lawsuit because that third party is liable to an original defendant. Supplemental juris if claim arises from a common nucleus of operative fact.
Interpleader
Permits a person in the position of a stakeholder to require 2 or more claimants to litigate amongst themselves to determine who has a rightful claim to the money (doesn’t want to have to pay out twice)
Rule Interpleader: Relies on the normal rules of SMJ (FQ or complete diversity between stakeholder and claimants above $75K)
Statutory Interpleader: When AIC is $500 or more and diversity between any two contending claimants. (Q100)
12b Motions
Waived if not in first response: Insufficient process/insufficient service of process/lack of PJ/improper venue (D can waive at will)
Insufficient process refers to defects in the documents and their content, whereas insufficient service of process refers to the manner in which the documents were presented, delivered and/or served to the defendant.
Failure to state a claim on which relief can be granted can be asserted pre-answer, any pleading, by later motion for judgment on the pleadings, or at trial.
