Civil Procedure Rules Flashcards
(108 cards)
1
Q
Personal Jurisdiction Analysis
A
- Exercise of PJ must fall into a state statute
- The Exercise of PJ must satisfy the Constitution
2
Q
PJ Constitutional Test (IS)
A
Whether the D has sufficient minimum contacts with the forum that it would not be a miscarriage of justice
- Contact
- Relatedness
- Fairness
3
Q
Contact Factors
A
- Purposeful Availment
- Foreseeability
4
Q
Relatedness (if related, specific; If not, general)
A
- P’s claim must arise out of or relate to D’s contact w/ the forum
5
Q
Fairness Factors (Specific PJ)
A
- Burden on the defendant and witnesses
- State’s interest
- Plaintiff’s Interest
6
Q
Notice Documents for Proper Process
A
- Summons
- Copy of Complaint
7
Q
Who Can Serve Process
A
- Any person who is at least 18 years old
- Someone not a party to the action
8
Q
When must process be served?
A
- Must take place within 90 days of the filing of the complaint
9
Q
Substituted Service Individual
A
- Can only be done at the defendant’s usual place of residence
- With someone of suitable age and discretion who resides here
10
Q
Service on a Business
A
- Delivering to an officer or a managing/general agent
- Using a method permitted by the state
11
Q
Waiver
A
- Service can be waived within 30 days of receipt
12
Q
Federal Question Subject Matters
A
- Patent Infringement
- Bankruptcy
- Some federal securities
- Antitrust claims
- Any claim arising under federal law
13
Q
Diversity of Citizenship
A
- Case is between citizens of different U.S. States or One citizen of a U.S. State and citizen of a foreign country and the amount in controversy exceeds $75,000
14
Q
Complete Diversity
A
There must be complete diversity on both sides of the V, all defendants must be from a different state than all plaintiffs
15
Q
Domicile
A
- Used to determine citizenship of a natural person
- Shown by physical presence in a state plus intent to stay
16
Q
Citizenship of Corporation
A
- Any state that they are incorporated
- Where there principal place of business is located
17
Q
Principal Place of Business (PPB)
A
- Where the nerve center of the company is. The CEO and other top executives do business
18
Q
Citizenship of LLC
A
- Any state where an LLC’s general and limited partners are located
- Unincorporated Association take on the citizenship of all its members.
19
Q
Citizenship of Decedents, Minors, and Incomptents
A
Even though sued through a representative, citizenship of the decedent or minor is used.
20
Q
Citizenship in Class Actions
A
- Named class members are used
21
Q
Aggregation Claims
A
- Any single plaintiff may aggregate all of their claims against a single defendant. They do not need to be related
22
Q
Equitable Relief to Satisfy Amount IC (Two Views)
A
- One test looks at P’s viewpoint, if injunction granted, does relief requested have a value of mare than 75k to P
- Other looks at D, will it hurt more than 75k
23
Q
Excluded Cases
A
- Divorce
- Alimony
- Child Custody
- Probate
24
Q
Well-Pleaded Complaint
A
- Plaintiff’s claim must arise under federal law
25
How to Remove a Case
- File notice of removal in federal court stating grounds for SMJ
- File a copy with the adverse party and in state court
- Must remove no later than 30 days after service
- Plaintiff can never remove
26
Removal Rules
- Case is removed to the same district court that the state court where it was filed sits.
- If improper, federal court can remand.
- SMJ must exist
27
Who must join in the removal?
- All defendants who have been served with process
28
Limits to removal for diversity jurisdiction
- The case should not be removed if any D is a citizen of the forum state (in-state defendant rule)
- The case should not be removed more than one year after it was filed in state court
29
Challenging Removal
- If not based on lack of SMJ, must do so within 30 days
- Based on SMJ, will be able to at any time
30
Steps for analyzing whether a additional claim can be brought in Federal Court?
Step 1: Check for Diversity or FQ jurisdiction (no need for supplemental)
Step 2: Check for Supplemental Jurisdiction
31
Steps to follow for Supplemental Jurisdiction
- Assess whether the claim to be joined satisfies the common nuclear test
- If so, ask whether it is FQ or Diversity
- If the original case is FQ then supp. juris is good
- If not apply plaintiff limitation for Diversity Cases
- Court can still decide to decline if complex state law issues
32
Common Nucleus Test
- Claim for Supplemental Jurisdiction must share a common nucleus of operative fact. Broader than a claim arising from same t/o.
33
Limitation on Supplemental Juris. + Exception
- Claims by plaintiffs cannot involve Supp. Juris
EXCEPTION: When there are multiple plaintiffs and the claim by one arises from the same t/o and does not meet amount IC
34
Erie Test
- Step 1: Is there some federal law that directly conflicts with state law? If so, apply federal law
- Step 2: If there is no federal law on point, judge must apply state law to substantive issues
- Step 3: If no federal law and not clearly substantive, court must determine if substantive and if so apply state law
35
Substantive Determination Factors
- Would applying or ignoring the state rule effect the outcome of the case?
- Does either the federal or state system have strong interest in their rule being applied?
- If federal court ignores state law will it encourage forum shopping
36
Five automatic state law substantive issues
- Conflict of law rules;
- Elements of a claim or defense;
- Statutes of Limitation
- Rules for tolling statutes of limitations; and
- The standard for granting a new trial because the jury award was excessive or inadequate
37
Federal Common Law
- International Relations
- Admiralty
- Disputes between states
- The right to sue a federal officer for violating one's federal rights
38
Venue is Proper
- Any district where all defendants reside in that State
- Any district where a substantial part of the claim arose or a substantial part of the property is located
39
Venue Nuances
- Plaintiff doesn't matter
- Venue applies in FQ or Diversity but not removal
- If D resides outside of the US, venue is proper in any federal district court, but if another D is US resident, venue must be proper as to them
40
Where D resides for Venue
- A human resides in the federal district where they are domiciled
- A business. resides in all districts where it is subject to PJ for the case
41
Public Factors to Consider before Transfer
- What law applies
- What community should be burdened with jury service
- The desire to keep a local controversy in a local court
41
Transfer of Venue
- Allowed but must be to another federal court and must be a proper venue and have PJ over D w/o waiver
- Court can order based on convenience of parties and witnesses and in interest of justice.
- Burden on the person seeking transfer
- Exception: court can transfer to any district is all parties consent and the court finds cause
42
Private Factors to Consider Before Transfer
- Convenience based on where the D's and Evidence are found
43
Effect of Transfer on Choice of Law
When a diversity case is filed in proper venue but court orders transfer, the transferee court must apply the choice of law rules of the transferor court
44
Forum Selection Clause
- Provision where the party agree the dispute will be litigated in a specific place
- Federal Law enforces if they are not unreasonable and it governs over state law
- When FSC is valid, only public interest factors are considered for the transfer
- When transferred based on FSC, transferee court will apply its own choice of law rules
45
Improper Venue
- Court may either dismiss or transfer in the interest of justice
- Transferee court applies own choice of law rules
46
Forum Non Conveniens
- When best place for case is in a different judicial system.
- Court will either stay or dismiss the case to let P sue in another court
- Other court must be adequate
47
Complaint (Must contain:)
- Commences an action
- MC: (1) a statement of grounds for SMJ, (2) a short and plain statement of the claim, (3) a demand for relief sought
48
Details Required in Complaint
- Sufficient facts to support a plausible claim
49
Special Pleadings must be pleaded with more detail
- Fraud
- Mistake
- Special
50
12B Motions
1. Lack of SMJ
2. Lack of PJ (waivable)
3. Improper Venue (waivable)
4. Insufficiency of Process (waivable)
5.. Insufficiency of Service of Process (waivable)
6. Failure to state a claim upon which relief can be granted
7. Failure to join an indispensable party
51
Rule 12(e)
Motion for a more definitive statement
52
Rule 12(f)
Motion to strike
53
Defendant's Response
- Can respond by pre-answer motion or motion
- Have 21 days from being served with process
54
Rule 12 Motion Denied
- D has 12 days to file answer
55
Answer
- Admit some or all allegations
- Deny some or all allegations
- State that you do not have sufficient information
- Failure to respond is an admission
- Raise affirmative defenses
56
Right to Amend by Plaintiff
- Right to amend once as of course no later than 21 days after the D serves their first rule 12 response
57
Right to Amend by D
- D has a right to amend the answer once as of course within 21 days of serving it
- May include waivable rule 12(b) defenses and affirmative defenses
58
Amendment after Right has Expired
- Party can seek leave of court and the court will grant if justice so requires
59
Relation Back after SOL has Run
An Amended please relates back if the pleading concerns the same conduct, transac, or occurrence. Treat as though it was filed originally.
60
Amendment to Change a Defendant Factors
- The amendment concerns the same conduct, t/o
- the defendant had suck knowledge of the case that they will avoid prejudice; and
- the defendant know or should have known that, but for a mistake, she would have been named originally
61
Supplemental Pleadings
- Set forth things that happened after pleading was filed
- No right but must make a motion
62
Rule 11 Signature Requirement
- When a lawyer signs documents they certify that to the best of their knowledge and belief after reasonable inquiry:
- the paper is not for an improper purpose
- the legal contentions are warranted by law or a nonfrivolous argument for a law change, and
the factual contentions have evidentiary support or are likely to after further investigation
63
Sanctions
- To deter a repeat of the conduct
- Can be imposed against the party, lawyer, and lawyers firm
- Court can issue on its own motion
64
Types of sanctions
- non-monetary
- Monetary
65
Safe Harbor Provisions
- If party violates rule 11, the opposing party cannot immediately file a motion for sanctions. Party must file on the party to be sanctioned and give 21 days to fix the problem
66
Claim Joinder by Plaintiff
Anyone asserting a claim may join any additional claim she has against that adverse party even if it is unrelated
- Must be SMJ over the claim
67
Claims by Multiple Plaintiffs and Defendants
- These claims must (1) arise from the same t/o and (2) raise at least one common question of law or fact
68
Is an Absentee Necessary Factors
- Without the absentee, the court cannot accord complete relief among the existing parties; or
- the absentee's interest may be harmed if she is not joined; or
- the absentee claims an interest that subjects a party to a risk of multiple obligations
69
Can the Absentee be Joined?
- If there is PJ over the absentee
- There will be federal SMJ over the claim or against the absentee
70
What if the Absentee cannot be Joined (dismissal factors)
- Is there an alternative forum available (maybe some state court)
- What is the actual likelihood of harm to the absentee?; and
- Can the court shape relief to avoid that harm to the absentee?
71
Counterclaim
- Part of the D's answer
- P must respond under rule 12 within 21 days of service of the counterclaim
- Two types: compulsory or permissive
72
Compulsory Counterclaim
- One that arises from the same t/o as the P's claim
- Claim is waived if you do not bring it
73
Permissive Counterclaim
- One that does not arise from the same t/o
- D can bring the claim or not
- Must be counterclaim
74
Crossclaims
- Claim against a coparty
- Must arise from the same t/o as the underlying action
75
Impleader
- Claim used to shift blame from the D to a third-party D the liability that the D will owe to the P.
- Look for claims of indemnity or contribution
- Claim is permissive
76
Indemnity
Shifts liability completely (so the TPD must cover the full claim)
77
Contribution
Shifts liability pro-rata (so the TPD must cover a pro-rata portion of the claim)
78
Process for Impleading TPD into the Case
(1) must file a third-party complaint naming the TPD
(2) have that complaint formally served on the TPD.
- Right to implead within 14 days of serving the answer
- After that, court permission is needed
- TPD and P may assert claims against each other that arise out of the same T/O
- SMJ is required
- PJ can be if they were served in a district not more than 100 miles from the fed court that issued the summons
79
Intervention
- Nonparty absentee uses to bring themselves into the case.
- Must be timely
80
Intervention of right
- If the absentee's interest may be harmed and is not adequately represented by the current parties, intervention is a right
81
Permissive Intervention
- If the absentee's claim has at least one common question of law or fact, intervention would be permissive and discretionary w/ court
- Must have SMJ
82
Interpleader
Permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it.
83
Class Actions Initial Requirements (need all 4)
- Numerosity (too many class members for practicable joinder)
- Commonality (there must be some issue in common to all class members)
- Typicality (the class rep's claims are typical of the claims of the class)
- Representative Adequate (fairly and adequately represent the class_
84
Types of Class Action
- Type 1: Prejudice - Class treatment is necessary to avoid harm either to class members or the non-class party
- Type 2 - Injunction or Dec. Relief - seeks an injunction or a declaratory judgment because the D treated the class members alike.
- Type 3 - Common Q or Damages - (1) common questions must predominate over individual q's, (2) the class action is a superior method to handle the dispute. Used for mass torts.
85
How Courts Certify Classes
- After cert, the court must define the class and the class claims, issues or defenses; and
- appoint class counsel, who must fairly and adequately represent the interests of the class
86
Notice
- All potential class members must be provided notice usually by mail
- Tells class members they can opt out, will be bound by the judgment if they don't opt out, and can enter a separate appearance through counsel
87
Class Action Fairness Act ("CAFA")
- Grants SMJ separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action if: (1) there are at least 100 members; (2) any class member, not just the rep, is of diverse citizenship for any D; and (3) the aggregated claims of the class entered $6 million
88
Initial Required Disclosures
- Within 14 days of the rule 26(f) conference parties must disclose:
- Information for persons with discoverable info, and the topics on which they have discoverable information, and who the party may use to support their claims or defenses
- Document and tangible things that the party may use to support her claims or defenses in their custody or control
- Insurance Coverage
- Computation of Relief
89
Penalty for Failure to Disclose Initial Things and EW
- Party that fails to disclose cannot use the undisclosed material or the EW in the case unless substantially justified
90
Expert Witness
- Each party must identify EW's who may provide testimony not consultants
- Must disclose identity and written report including opinions, bases for opinions, facts used to form opinion, the qualifications, and how much they are being paid
91
Required Pretrial Disclosures
- No later than 30 days before trial, parties must give detailed info about trial evidence
- identity of witnesses who will testify live or through depo
- ESI
- Other things that may be introduced at trial
92
Deposition Rules
- Max on 10
- Can be party and non-party (need subpoena for non-party)
- Testimony under oath
- When serving on a corporation you just notice the info you need and they designate a rep
93
Use of Depos at Trial
- To impeach the D
- For any purpose if the deponent is an adverse party; or
- for any purpose if the deponent is unavailable at trial
94
Interrogatories Rules
- Can only be sent to parties
- Max of 25
- Must be answered within 30 days of service
- Parties must answer based on info reasonably available
- If answer is in business records, and parties have equal burden of finding, the responding party can allow the party to have access to the records
95
Request to Produce
- Asks a party to make available some document or information for review
- Responding party may object but must respond in writing within 30 days
- Only parties can be sent a request, non-parties would be subpoenaed
96
Medical Exam
- Court order is required to compel a party to a mental exam.
- Requesting party must show that the person's health is in controversy and good cause
- Requesting party chooses professional to perform
- Requesting party gets report, party for who the exam was taken can get report but will then need to open up personal medical records about issue
97
Request for Admission
- Written request that someone admit certain matters
- Responding party must answer in 30 days admitting or denying
- No answer will be deemed admission
98
Signature Requirement for Discovery
- Parties sign substantive answers under oath. Every signature by counsel certifies the request or response is warranted, not for an improper purpose, not unduly burdensome
99
Scope of Dicovery
- A party can discover anything relevant to a claim or defense and proportional to the needs of the case
100
Objections to Scope
- Privilege
- Work Product Protection
101
Work Product
- Anything prepared in preparation of a trial
- Does not need to be produced by a lawyer
- Can be qualified or absolute
102
Qualified Work Product
- May be discovered if requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way
103
Absolute Work Product
- Opinion work product that can never be discoverable
104
Protective Order
- Party can seek if they believe request is undue burden
- Must certify that she tried in good faith to resolve the issue without court involvement
105
Protective Order Court Actions
- Deny discovery
- Limit discovery; or
- Permit discovery on specified terms
106
Preliminary Injunctive Relief
- A court order that the D either do something or refrain from doing something
107
Difference between Temporary Restraining Order and Preliminary Injunction
An order that maintains the status quo until trial is a preliminary injunction. Before getting a preliminary injunction, to maintain the status quo until the hearing on the PI you may seek a TRO
