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Personal Bar Exam > Civil Procedure - Federal > Flashcards

Civil Procedure - Federal Flashcards

1
Q

subject matter jurisdiction

A

power to hear the case (SMJ)

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2
Q

Diversity of citizenship requirements

A

1) either between citizens of different states or citizen of a state and citizen of a foreign country; and 2) amount in controversy EXCEEDS $75,000 (if exact, doesn’t meet amt in controversy requirement)

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3
Q

Complete diversity rule

A

no diversity if any plaintiff citizen of same state as any defendant

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4
Q

Citizenship of natural person

A

domicile: 1) presence in state and 2) intent to make permanent home. Note: test for citizenship when case is FILED

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5
Q

Citizenship of corporation

A

1) state where incorporated AND 2) state where corp has principle place of business (PPB) - i.e., where managers direct, coordinate, and control corp activities

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6
Q

Citizenship of unincorporated association (e.g., LLC, partnership)

A

use citizenship of all members

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7
Q

Citizenship of decedents, minors, or incompetents

A

use their citizenship not that of their representative

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8
Q

Amount in controversy

A

Plaintiff’s good faith claim must exceed $75k. Whatever P claims is fine unless clear to a legal certainty that cannot recover more than $75k (But…P who ultimately gets less may have to pay D’s litigation costs)

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9
Q

When can you aggregate plaintiff’s claims to meet amount in controversy requirement?

A

We aggregate the claims of ONE plaintiff v. ONE defendant; AND for joint claims (joint tortfeasors) use total value of the claim (# of parties is irrelevant)

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10
Q

Meeting amount in controversy requirement when asking for equitable relief

A

Two tests, if EITHER met, then ok -> 1) plaintiff: does blocked view decrease the value of plaintiff’s property by more than $75k; 2) defendant: would it cost defendant more than $75k to comply with the injunction

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11
Q

Cases no fed court will ever hear

A

actions involving issuance of divorce, alimony, or child custody decree, or to a probate an estate

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12
Q

Meeting federal question (FQ) requirement

A

Complaint must show a right or interest FOUNDED substantially on federal law (e.g., fed statute, constitution). The claim arises under federal law. Citizenship/amount is irrelevant

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13
Q

Well pleaded complaint rule

A

Not enough that some federal issue raised by the complaint. P’s claim itself must arise under federal law (ask: is plaintiff enforcing a federal right? if yes - case CAN go to fed ct under FQ; if no - it cannot)

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14
Q

When to invoke supplemental jurisdiction

A

Cannot be used to get a case into fed court, only works after a case is already in fed court, and now have an additional claim in that case that does not meet diversity or FQ

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15
Q

“The Test” for supplemental jurisdiction

A

The claim we want to get in to fed court must share a common nucleus of operative fact with the claim that invoked FQ or diversity. Test is ALWAYS met by claims that arise from same transaction or occurrence (T/O)

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16
Q

Limitations on “the test” for supplemental jurisdiction

A

In a DIVERSITY case, PLAINTIFF cannot use supplemental jurisdiction to overcome a lack of diversity. (P CAN use supp. jur. to overcome lack of diversity for a claim in FQ case and P CAN use to overcome lack of amount in controversy)

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17
Q

Summary of how to go through sup jur cases

A

Non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is: 1) asserted by the P; 2) in a diversity of citizenship case (not FQ); AND 3) is against a citizen of the same state as the P

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18
Q

Discretionary factors in sup jur

A

court has discretion not to hear supp claim if 1) fed question dismissed early in proceedings; or 2) state law claim is complex; or 3) state law issues would predominate

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19
Q

What is removal?

A

Defendant sued in STATE court might be able to remove a case to federal court. One way street (only state to fed). If removal improper fed court can remand to state court

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20
Q

When can a case be removed?

A

30 days after SERVICE (not filing) of the first paper that makes case removable

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21
Q

Who can remove?

A

Defendants, but if multiple, ALL D’s must agree. P’s can NEVER remove. Also note: 30 days starts anew with service on second D

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22
Q

What kinds of cases can be removed?

A

In general: one that would meet the requirements for diversity or FQ EXCEPT: 1) no removal if ANY D is a citizen of the forum AND 2) no removal more than one year after the case was filed in state court

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23
Q

Where can a case be removed?

A

ONLY to federal district court embracing the state court

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24
Q

Erie doctrine

A

federal court in a diversity case must apply state substantive law

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25
Q

Approach for Erie cases

A

1) is there a federal law (including FRCP) on point that directly conflicts with state law? If so -> apply fed law under supremacy clause. Even FRCPs so long as valid (test - arguably procedural); 2) if no federal law on point ask is this issue one of the easy ones? (SCOTUS defined substantive so apply state law); 3) where no fed law and issue not an easy one and fed judge wants to ignore state law, ask three tests -> a) outcome determinative b) balance of interests, c) avoid forum shopping

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26
Q

Easy cases under Erie that are substantive and state law applies

A

1) elements of claim or defense; 2) statute of limitations; 3) rules for tolling statute of limitations; 4) choice of law rules

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27
Q

Basic idea of venue

A

Venue tells us which fed district court (SMJ tells us if we can go to fed court at all)

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28
Q

Basic choices for venue

A

plaintiff may lay venue in any district where: 1) all defendants reside (special rule - in cases where all Ds reside in different districts of same state, P can lay venue in district in which any reside) OR 2) a substantial part of the claim arose. NOTE: always discuss both

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29
Q

Where defendants reside for venue purposes

A

Natural persons - domiciled; businesses - all districts where subject to PJ in this case

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30
Q

Transfer of venue

A

federal district court may transfer the case to another federal district court but can only transfer to a district where case could have been filed (proper venue that has PJ over Ds)

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31
Q

Court’s ability to transfer venue

A

If venue in original district is proper, then court has discretion to transfer to another district, based on convenience for parties/witnesses and interests of justice. Factors looked to - public and private factors showing that other court is CENTER OF GRAVITY. If venue in original is improper, court may transfer in interests of justice or dismiss

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32
Q

Doctrine of forum non conveniens

A

Where there’s another court far more sensible than current one, but in different judicial system (e.g., foreign country), court will dismiss or stay the case because transfer is impossible. Note: other court must be adequate (just enough that P gets day in court)

33
Q

Service of process

A

must give notice to D by 1) delivering a summons and 2) a copy of the complaint (both papers called process)

34
Q

Who can serve process?

A

Any nonparty who is at least 18 years old

35
Q

How is process served?

A

1) personal service; 2) substituted service; 3) service on D’s agent; 4) state law; 5) waiver by mail

36
Q

When can you use substituted service of process?

A

1) left at D’s usual abode (common sense) and 2) you serve someone of suitable age and discretion who resides there

37
Q

Service on D’s agent

A

process can be delivered to D’s agent if agent is receiving service within scope of agency (agent appointed by contract or law or corp’s registered agent, managing agent or officer)

38
Q

State law service

A

fed court can use methods of service permitted by state law of state where fed ct sits or where service effected

39
Q

Waiver of service by mail

A

Mail to D a copy of complaint and two copies of waiver form, with a prepaid means of returning the form. If D executes and mails the waiver form to P within 30 days, D waives formal service (gets 60 days from the mailing to respond to the complaint). P then files the waiver in court. It’s effective then. D doesn’t waive any defenses by doing this. IF D fails to return waiver form and P serves via other means, D pays this cost

40
Q

Geographic limitation on service

A

Federal court can serve process outside the state in which it sits only if state law allows

41
Q

Immunity from service

A

D is immune from service if in state to be a witness or party in another civil case.

42
Q

Rule 11

A

Requires atty or party if pro se to sign all papers (except discovery docs) certifying that to best knowledge and belief after reasonable inquiry: 1) paper not for improper purpose; 2) legal contentions are warranted by law (or nonfrivolous argument for law change); 3) factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)

43
Q

Rule 11 sanctions

A

Sanctions may be levied (they are discretionary) against atty, firm, or party. They are to deter a repeat of bad conduct. Can be non-monetary. Monetary paid to court not other party

44
Q

When can a party move for Rule 11 sanctions?

A

Not right after a rule 11 violation, can serve motion on other party but cannot file it. Party in violation has a safe harbor of 21 days to fix and avoid sanctions

45
Q

Effect of court raising sanctions for Rule 11 sua sponte

A

Demands party show cause why there shouldn’t be sanctions and no safe harbor

46
Q

What is the complaint?

A

filing that commences an action

47
Q

What are the requirements for a complaint?

A

1) statement of grounds for SMJ; 2) short and plain statement of the claim, showing entitled to relief; 3) demand for relief sought

48
Q

Standard for stating the claim

A

Under notice pleading, only needed enough detail to put other side on notice, now, SCOTUS requires that must plead facts supporting a PLAUSIBLE claim (judge evaluates with own experience and common sense)

49
Q

Three matters that must be plead with more detail and what detail

A

1) fraud; 2) mistake; 3) special damages. Must plead with PARTICULARITY AND SPECIFICITY

50
Q

How can D respond to complaint?

A

1) by motion or 2) by answer

51
Q

Responding by motions

A

Not pleadings, but requests for court order. Form - motion for more definite statement (rare); motion to strike

52
Q

Rule 12(b) defenses - can be raised either by motion or answer

A

1) lack of SMJ; 2) lack of PJ; 3) improper venue; 4) insufficiency of process; 5) insufficient service of process; 6) failure to state a claim; 7) failure to join indispensable party

53
Q

Which of the 12(b) defenses are waivable?

A

nos. 2,3,4,5 (lack of PJ, improper venue, insufficiency of process, insufficient service of process)

54
Q

What does waivable mean?

A

Waivable defenses must be put in the first rule 12 response (motion or answer or else they’re waived)

55
Q

When is SMJ waived?

A

never. Can even raise it on appeal

56
Q

What is the answer?

A

it is a pleading, responding to the allegations in the complaint and raising affirmative defenses

57
Q

Timing of the answer

A

serve within 21 days after service of process, but if D made rule 12 motion, and it’s denied, D must serve answer within 14 days after court rules on motion

58
Q

Ways to respond to allegations in complaint

A

admit, deny, state that D lacks sufficient information to admit or deny (acts as a denial but can’t be used if info is public knowledge or in D’s control). Failure to deny can constitute an admission on any matter except damages

59
Q

What is a counterclaim?

A

claim against an opposing party. In fed court it’s part of D’s answer

60
Q

Two types of counterclaim

A

1) compulsory, 2) permissive

61
Q

Elements/requirements of compulsory counterclaim

A

arises from same T/O as P’s claim. Must be filed in the pending case or it’s waived. Not compulsory if D filed suit before getting sued

62
Q

Elements/requirements of a permissive counterclaim

A

does not arise from same T/O as P’s claim. May file it in answer or assert in separate case. If counterclaim is procedurally ok in fed court, than assess whether claim invokes SMJ. If no SMJ, then try sup jur

63
Q

Cross-claim

A

claim against a co-party. MUST arise from same T/O as underlying action. NEVER compulsory. Does need to meet SMJ or sup jur

64
Q

Right to amend

A

P: has right to amend within 21 days after D serves rule 12 response (motion or answer). D: has right to amend ONCE within 21 days of serving his answer

65
Q

If no right to amend, when can parties amend?

A

If they seek leave of court, and it will be granted if justice so requires (look at delay, prejudice, futility of amendment)

66
Q

What is variance?

A

where evidence at trial does not match what was pleaded

67
Q

Amendment after the statute of limitations has run (i.e., “relation back”)

A

Relation back means you treat the amended pleading as though it was filed when original was filed so it can avoid a SOL problem. WRT joining a new claim: Amended pleadings relate back if they concern the same transaction, conduct, or occurrence. WRT changing a defendant after statute has run: relates back if 1) concerns same t/c/o as original; 2) new party knew of this case within 120 days of its filing; AND 3) also knew that, but for mistake, that new party would have been named originally (i.e., this applies when P sued wrong D first, but right D knew about it)

68
Q

Required discovery disclosures

A

initial disclosures - ID persons and other info likely to have discoverable info, ID experts who may be used at trial, and any docs relating to them, pretrial info about evidence, docs, etc to be used at trial

69
Q

When can discovery tools be used?

A

after rule 26(f) conference unless court order or stipulation allows

70
Q

Which discovery tools can be used to get info from a non-party?

A

depositions, requests to produce. But must be subpoenaed or else not compelled to attend

71
Q

Availability of tool for physical or mental examination

A

only available for court order on showing that a party’s or person’s in party’s control health is in actual controversy and good cause (i.e., need it and can’t get it elsewhere)

72
Q

Duty to supplement discovery

A

after response if things change making response to required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect, you MUST supplement response

73
Q

Scope of discovery

A

anything relevant to a claim or defense (“calculated to lead to discovery of admissible evidence”). Cannot discover communications protected by privilege

74
Q

work product doctrine

A

material prepared in anticipation of litigation, generally protected from discovery UNLESS opposing party show’s substantial need/not otherwise available. Also, work product that’s mental impressions, opinions, conclusions and legal theories is ABSOLUTELY protected

75
Q

Remedy for partial violation of discovery

A

(answers some but objects to others). Step one: get an order compelling the party to answer the unanswered questions, plus costs (including atty’s fees) of bringing the motion). Step 2: If violate court order, RAMBO sanctions, plus costs and could be held in contempt (except for refusal to submit to medical exam)

76
Q

Remedy for total violation

A

no need to get order to compel, go straight to RAMBO plus costs

77
Q

RAMBO sanctions

A

establishment order (establishes facts as true); strike pleadings of disobedient party (as to issues re discovery); disallow evidence from disobedient party (as to issues re discovery); dismiss plaintiff’s case (if bad faith); enter default judgment against defendant (if bad faith)

78
Q

Who may be joined as co-parties?

A

When claims arise from same t/o and raise at least one common question. Then assess SMJ (diversity or FQ)

79
Q

Who is a necessary party for necessary joinder?

A

Meets any of 3 tests: 1) without the absentee (A), court cannot accord complete relief among existing parties

Personal Bar Exam (10 decks)

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