Flashcards in Fed procedure Deck (28)
NOT probate cases or domestic relations.
Minimal diversity ONLY for statutory interpleader, $5mil+ class actions, and interstate mass torts.
Residence of representative parties
Resident of representative parties controls, EXCEPT for:
1) executor --> citizenship of estate.
2) legal representative of infant or incompetent --> citizenship of parents.
3) corporation --> state of incorporation OR "corporate nerve center"
4) unincorporated associations --> any partner's citizenship.
Threshold for diversity actions
$75k based on "good faith allegation"
1) aggregation of multiple claims between 2 parties.
2) aggregation of multiple claimants over same right
3) whenever at least 1 plaintiff hits the $75k threshold, others can ride along.
Cross-claims: "Common nucleus of operative fact"
Compulsory counterclaims always.
Permissive counterclaims must meet diversity requirements.
1) impleaded 3p defendants
2) claims against necessary parties
3) claims by intervenors
4) claims by plaintiffs joined invoulntarily.
Removal for fed question jurisdiction
"federal question apparent on the face of the complaint"
Removal based on diversity jurisdiction
1) complete diversity
3) no defendant is citizen of state
4) within 1 year of commencement
File notice in fed court, copy to state court.
Minimum contacts + fair play and substantial justice.
Minimum contacts = "purposeful availment"
Extentions for fed court PJ
1) interpleaders: nationwide service of process.
2) bulge provision: necessary parties or impleaded third'party defendant within 100 miles of courthouse.
Special rules for service of process
1) infant = parent or guardian
2) incompetent = incompetent AND guardian
3) partnership = general partner, attorney, or agent.
4) corporation = director, officer, office.
5) non-resident motorist = department of motor vehicles.
6) in rem/ quasi in rem = diligent efforts.
When to raise lack of PJ or improper venue?
At the first opportunity, i.e. pre-answer motion to dismiss.
Venue is proper where:
1) any defendant resides
2) claims arose
3) anywhere defendant can be served.
4) for cases removed from state court, venue where state court sits.
Consequences of transferred venue
If transferor had venue --> transferor law controls.
If transferor venue was improper --> transferee law controls.
What is included under Erie?
1) substantive law
2) statutes of limitations
3) rules allocating burdens of proof
4) state choice of law rules.
"fair notice" of contention
"short and plain" statement of claim
EXCEPTIONS (must be alleged with particularlity):
1) fraud or mistake
2) special damages
-within 21 days.
Amendment as right: once within 21 days. amendment by leave "granted freely."
Amendment relates back to time of original pleading if "same conduct, transaction, or occurence."
"arising out of same transaction or occurence" + "common question of law or fact".
NO joinder if it destroys complete diversity.
MAY destroy complete diversity.
"common question of law or fact"
2) Common question of law or fact
4) Adequacy of representation
Dismissal or settlement requires judicial approval.
Diversity jurisdiction based on named plaintiff. Minimal diversity if 100+ people and $5mil+ at stake.
1) names and contacts of people with discoverable info.
2) expert witnesses.
3) list of witnesses and exhibits at trial.
To get work product: need + cost.
NO access to expert witness reports unless they will be used at trial.
Situations that can lead court to order immediate default
1) failure to attend desposition
2) failure to respond to interrogatories
3) failure to respond to discovery request
Plaintiff's right to voluntary dismissal
anytime before defendant serves answer.
Judgment as a Matter of Law
Summary judgment after trial.
Can be renewed after jury verdict.
Bases for new trial
1) error made judgment unfair
2) newly discovered evidence
3) prejudicial miscoduct
4) excessive verdict and winning party refuses to accept remitter.
only from final judgment on the merits = when entered by clerk on docket.
File notice of appeal in trial court within 30 days (tolled for renewed judgment as matter of law or new trial).
Appealability of interlocutory issues = "controlling issue of law" and "materially advance" termination of litigation.
Standards of review:
- law = de novo.
- fact = substantial evidence (jury) OR clearly erroneous (judicial).
- discretion = abuse of discretion.
requirements of claim preclusion
1) final judgment on the merits
2) between same parties or successors in interests
3) involving same claim.