Full Set Flashcards
1
Q
subject matter jur basics
A
can’t be waived
objection at any time by anyone
federal question or diversity
2
Q
personal jur
A
Has particular basis for exercising personal j over an out-of-state D been authorized by statute or by rule of court?
Is the particular basis for exercising personal j permitted by the Constitution (minimum contact - purposeful availment)
in personam
in rem
quasi in rem
can be waived
3
Q
venue
A
district where any D resides if all in the same state;
where claim arose;
where property subject to action is located
if neither - then any Fed
4
Q
federal question
A
obvi
5
Q
diversity jur
A
- CITIZENSHIP (not availment) different states (complete, all Ps from all Ds)
- > 75,000 from 1 P (can be aggregated thru multiple claims, only needs to be one P for supplemental jur, andcounterclaims don’t need to be that much)
- at time filed
6
Q
minimal diversity
A
at least one P different than D then, federal interpleader act or class actions >5,000,00 or interstate mass torts
7
Q
corporation’s citizenship
A
HQ/principle place of business
place of incorporation
8
Q
supplemental jur - fed q
A
same transactional occurrence
discretionary
same requirements for pendent JX over claims involving joinder or intervention of additional parties
9
Q
supplemental jur - diversity
A
same transactional occurrence
- compulsory counterclaims (one that arrises out of the same occurrence, does not need to meet >75k)
- permissive counterclaim must independently reach >75,000
- cross-claims (doesn’t need to reach min $)
- multiple P/permissive joinder (doesn’t need to reach min $, can’t violate complete diversity)
- cross claims if same trans
10
Q
when NO supplemental jur - diversity
A
- impleaded 3rd parties under R14
- claims against additional Ds under R19 and 20
- claims by P interveanors under R24
- claims by Ps involuntarily joined under R19
11
Q
removal
A
state –> fed
only if could have orig been brought in fed
removal based on diversity needs to meet complete at original filing and at time of notice of removal; 75k
filed in fed and copy to state court
12
Q
transfer
A
fed –> fed
13
Q
fed q requirements
A
- well-pleaded complaint
2. fed claim
14
Q
improper removal
A
P can file petition for remand
15
Q
in personam personal j
A
physical presence
domicile
consent
corporations (doing business, incorporated)
16
Q
specific in personam j
A
long-arm long list of acts and omissions and claims
basically, almost everything is covered by a state’s long-arm statute, so long as the claim arises out of the transaction involving that state
17
Q
Choice of Law: The Erie Doctrine
In general
A
- FQ—federal substantive and procedural law controls
2. DJ—state substantive law and applicable federal procedural law
18
Q
special pleading required for
A
fraud and special damages
19
Q
Twombly
A
complaint allegations must be sufficiently plausible
20
Q
defense motions against the complaint
A
MTD
MJ on the pleadings
M for more definite statement
M to strike
21
Q
answer
3 things to memorize
A
admission/denial
affirmative defenses
timing
22
Q
reply
A
P’s answer to a counterclaim
must be made w/in 21 days of D’s answer or order to reply
23
Q
amendments to pleadings
A
once at any time w/in 21 days of service or w/ 21 days of D’s response/12(b)
during/after trial okay if conforms to evidence and opposing party can prepare
leave of court (freely granted to amend the pleading if no undue justice to opposing party)
24
Q
certifying pleadings
A
pleadings, docs, motions, discovery requests
appropriate legal and; factual basis
best of attorney’s knowledge after reasonable inquiry
no improper purpose
warranted by existing law or by non-frivolous argument for change in law
factual allegations have evidentiary support
R11 sanctions
25
permissive joinder of parties
joinder by Ps
any number of them if out of same trans (same with Ds)
still need complete diversity
and need independ 75k
26
compulsory joinder of parties
```
joinder by Ds
necessary party - someone whose participation in lawsuit is necessary for just adj
must be joined if possible
still need complete diversity
ct can assert personal j (bulge)
```
otherwise court may decide to dismiss
27
necessary party
1. absent that party complete relief cannot be accorded to existing parties
2. necessary party has an interest in the lit, which will be 3. impeded if the lit goes forward w/o that party
there is a substantial risk of double or inconsistent liabiltiy
28
intervention as of right
may be had when outsider claims an interest in the subject matter of the lawsuit that as practical matter may be compromised by the disposition of the pending action
reasonable promptness
no supplemental and can't destroy complete diversity
29
permissive intervention
may be allowed whenever there is a common question of law or fact between the intervenor's claim and the main claim
reasonable promptness
no supplemental and can't destroy complete diversity
30
general interpleader info
policy - resolve competing claims on same property and avoid inconsistent obligations or multiple claims
31
stake
property at issue
32
stakeholder
person holding property
stakeholder-plaintiff is possible
needs to be diverse from claimants
33
claimant
person claiming the property
34
rule interpleader
FRCP22 - remedy available in suit otherwise within the court's jur
35
statutory interpleader
Federal Interpleader Act
special features:
- more than $500
- nation wide service of process
- venue proper where any claimant resides
- SMJ based on minimal diversity
36
compulsory counterclaim
- lost if not pleaded
- same transaction
- no independent j required - if SMJ over main claim, then SMJ over this claim
- filing tolls SOL for main claim and compulsory claims
37
permissive counterclaims
- now or later
- not same trans
- requires its own SMJ
- barred by SOL, you're SOL
38
cross-claims
need to arise out of same trans
39
impleading party names
impleaded party = 3rd party D
| original D = D and 3rd party P
40
impleading SMJ
by definition court will have SupJ so don’t need independent SMJ from original claim, but if original claim is based only on DJ, claims by P against 3rd party D must meet DJ or FQ JX requirements on its own
PJ - may be served w/in 100 mi of courthouse, needs PJ
41
Class action elements
1. numerousness
2. common question of law or fact
3. typicality of claims by class reps
4. adequacy by the rep's lawyer
42
dismissing class action
requires judicial approval
43
diversity in class action
at least one named P must be diverse from D and has a claim of >75k
44
Class Action Fairness Act 2005
100+ members w/ >$5,000,000 (aggregate) at stake + minimal diversity
45
```
mandatory disclosure (discovery)
types
```
1. initial disclosures (names and addresses, docs, damages, insurance agreements)
2. expert witnesses
3. pretrial disclosures (30 days before trial - any objections w/in 14 days after disclosure or waived, unless good cause)
46
scope of discover
relevance as general rule, not limited to admissibility
47
exceptions to discovery
see evidence cards
48
6 discovery devices
1. oral deposition
2. written documents
3. interrogatories
4. discovery and inspection of documents and land
5. physical and mental examination
6. request for admission
49
oral deposition (discovery mechanism)
oral and under oath
10 depos, unless ct says more
1 day of 7 hours
any notice for a party, subpoena for others
anytime after party has made mandatory disclosures
50
written docs (discovery mechanism)
delivered to officer who asks orally written down before RARE
51
interrogatories (discovery mechanism)
questions in writing to be answered under oath
only against a party
limited to 25
respond w/in 30 days
52
discovery and inspection of documents and land (discovery mechanism)
request to produce and permit inspection
applies only to parties
described with particularity
response due in 30 days
53
physical and mental examination (discovery mechanism)
only against a party
permitted for condition in controversy
only for good cause
54
request for admission (discovery mechanism)
used to streamline lawsuit
failure to respond within 30 days is admission
certification
no preclusive effect (only applies in THIS, not future, lawsuit)
55
pretrial conference
- trial attorneys
- file pretrial statement: claims and defenses, itemized damages, requests for stipulations and admissions, witnesses, exhibits
- failure means attorney pays fees of other attorneys
56
termination w/o trial devices
1. Judgment on the pleadings
2. default judgment
3. voluntary dismissal
4. involuntary dismissal
5. summary judgment
57
trial by jury
- 7th am
- equity issues and specific performance do NOT require
- damages triggers right
- demand 14 days after service of answer
- 3 premptory
- bench trial -- finds of fact and conclusions of law
58
JMOL
- moving for SJ after trial has begun (anytime before giving to jury)
- standard: viewing ev in light most favorable to opposing party, cannot support contrary verdict
- credibility of witness=question of fact, no JMOL
59
renewed motion for judgment as a mater of law (JNOV)
if court doesn’t grant directed verdict, movant can file a JNOV no later than 28 days after entry of trial judgment
- at close of all ev may be renewed after verdict
- ev cannot support jury's verdict and moving party is therefore entitled to JMOL
- condition precedent to post-verdict motion that the JMOL had been made at close of all ev
- usu made w/ motion for new trial
60
voluntary dismissal w/o prej
termination w/o trial - P has right to one at any time prior to D serving answer for MSJ
61
involuntary dismissal w/ prej
termination w/o trial - lack of Jur, improper venue, failure to join necessary party don't get prej ALL others due
judgment on the merits
appellate review = abuse of discretion
62
motion for new trial
- often made w/ renewed motion for JMOL, but different
- grounds for new trial:
1. errors make judgment unfair
2. newly discovered ev
3. prejudicial misconduct by lawyer, party, or juror
4. excessive verdict
- court must specific REASON OF LAW for new trial, reviewable only on abuse of discretion
63
appeals
- only from final judgments
| - file w/in 30 days of judgment
64
interlocutory orders
1. immediately appealable as a right - injunctions, or property right affected
2. discretionary interlocutory appeal - both trial and appellate court must agree (controlling Q of law and immediate appeal may advance materially)
3. collateral order doctrine (separable and collateral to main suit and too important to wait like motion to dismiss forum non conveins)
4. mandamus - abuse of authority
5. class actions - certification orders
65
standards of review
matters of law - de novo
matters of fact -
jury - affirmed if supported by substantial ev
judge findings of fact - affirmed unless clearly erroneous
judge conclusions of law - de novo
66
full faith and credit
judgments in courts of other states, assuming jurisdiction
67
claim preclusion
1. FJ on merits
2. same parties or their successors in interest
3. same claim or COA
68
issue preclusions`
1. issue of fact must arise in two suits
2. must have been actually and necessarily decided in first suit
3. party to be precluded must have been a party to the first suit
69
when new suit w/ similar facts, at least one same party as yourself:
is the claim in the second suit precluded by the prior adjudication?
if not, is the issue in the second suit precluded by prior adjudication?
70
Well-pleaded complaint Rule
FQ Subject Matter Jur - exists only when federal issue is presented on the face of the complaint (P’s c/a—not defenses, answers or counterclaims)
71
partnership jur
citizenship of partners general and limited
72
amount in controversy requirement for diversity jur
>$75k
good faith
Ps can aggregate claims w/ common/undivided interest (counterclaims generally not counted in determining whether P has met amount)
73
counter claims and; diversity jur
permissive counterclaim must meet jurisdictional amt requirement and compulsory counterclaim need not
74
supplemental jur diversity
| permissive joinder
addition of the party asserting additional claim cannot violate complete diversity rule (and not required to satisfy jurisdictional amount)
75
supplemental jur diversity
| Counterclaims
must be answered within 21 days of service!
compulsory counterclaims need not satisfy jurisdictional amount, but permissive counterclaims must satisfy both DJ requirements
76
supplemental jur diversity
| Cross-claims
must be answered within 21 days of service!
okay if they arise out of same transaction/occurrence as long as court has SMJ (and do not need to satisfy either DJ requirement)
77
Notice of Motional for Removal
timing
dealing w/ multiple Ds
D must file w.in 30 days after receipt of service of original pleading
only Ds against whom Fclaim is filed must consent/join in removal
cannot occur more than one year after action is commenced (unless P acted in bad faith)
78
In rem jur and
| process requirements
gives court authority to determine issues concerning rights to real/personal property
proceedings against property must still satisfy due-process requirements for PJ and property must generally be present w/in the forum state
79
Quasi in rem and
| process requirements
determines only the interests of the parties to the action regarding property located in forum state (e.g. lien foreclosure or quiet title action), and not personally binding against D
if disputes are unrelated to ownership of property and no close relationship is formed, in addition to having property located in forum state, MC must be shown between D and forum state
80
Forum non conveniens
Federal—only used when forum that is deemed most appropriate for the action is state/foreign court
81
Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear
Valid federal statute on point when state and federal laws conflict
apply federal law
82
Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear
No federal rule on point
apply state law if failure to do so would lead to different outcomes in state and federal court
83
Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear
Substantive law
elements of claim or defense, statute of limitations (S/L) and tolling provisions and burden of proof
84
Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear
Procedural law
judge/jury allocation, assessment of attorney’s fees, equitable/legal determination
85
Choice of Law: The Erie Doctrine
State conflict-of-law rules—Federal Court Must Apply State’s Conflict-Of-Law Rules
DJ
district court bound by conflict-of-laws rules of state in which the district court is located, but only to extent that state’s rules are valid under Full Faith and Credit and Due Process Clause
86
Choice of Law: The Erie Doctrine
State conflict-of-law rules—Federal Court Must Apply State’s Conflict-Of-Law Rules
Procedural or substantive law
states apply their own procedural laws and sometimes apply the substantive law of a foreign JX
87
timing of service of process
w/in 120 days after filing of complaint
88
waiver of service of process
request in writing and addressed to individual D
must give at least 30 days
extends time to serve answer from 21 days to 60 days
89
Motions against the complaint
timing
types
w/in 21 Days of Service
12(b)
12(b)(6)
90
12(b) MTD
w/in 21 Days of Service
"failure to state a claim upon which relief can be granted"
(can be raised in any pleading, motion for judgment on pleadings, or at trial)
91
12(b)(6) MTD
general standards
21 Days of Service
dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim
court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable to P
reasonable expectation that discovery will reveal evidence of necessary element
92
12(b)(6)
what can the court consider?
2 step process?
only allegations and attached exhibits in the complaint
1. Identify and reject legal conclusions unsupported by factual allegations
2. Assume truth/veracity of well-pleaded facts and include context specific analysis that draws on court’s judicial experience and common sense to determine if allegations plausibly give rise to relief
93
Motion for judgment on the pleadings 12(c)
just after answer filed (no #)
allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings
94
Motion for more definite statement
responding party may move for more definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading
95
motion to strike
when pleading contains insufficient defense, or redundant, immaterial, impertinent or scandalous material – court may order such defense or material stricken
96
answer to complaint must include
admission/denial of P's allegations OR plead lack of sufficient knowledge
D must assert affirmative defenses or they'll be waived
97
answer timing is dependent on whether D files an MTD
No - 21 days after service (or 60 if waived service)
Yes - no filing while MTD is pending, and then if denied 14 days after court's action denying to answer
98
```
relation back (an amendment)
new claim
```
back to date of orig. plea. if claim/defense arose out of same trans
99
```
relation back (an amendment)
new party
```
relates back
100
time to respond to an amendment
14 days after service of amended pleading (or time left on original pleading, i.e.,waiver - if applicable)
101
intervention requires
time?
DJ or SMJ?
timeliness (court will consider)
| and SMJ
102
fed rule P interpleader
persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead claims though they lack common origin or are adverse and independent rather than identical or P denies liability
103
fed rule D interpleader
exposed to similar liability may seek interpleader through a cross-claim or counterclaim
104
impleader timing
can be asserted any time after complaint is filed, but 3rd party P must get court permission if filed more than 14 days after service of original answer
105
Three situations when class can be certified:
1. Risk of prejudice
2. Final equitable relief
3. Common legal/factual questions
106
class action certified by Common legal/factual questions
must predominate over questions affecting individual members and class action is superior method for bringing about fair and efficient adjudication of controversy
107
class action certified by Final equitable relief
equitable relief based upon a shared general claim must be the primary relief sought
108
class action certified by Risk of prejudice
separate actions would create risk of class opponent subject to inconsistent adjudications or impaired interests of class members
109
Mandatory Disclosure
| 1. Initial disclosures
subject to certain exceptions, must disclose information regarding individuals having discoverable information, documents supporting claims/defenses, computation and backup of damages, or relevant insurance agreement for satisfying judgment
Standard—information reasonably available, not excused for not fully investigating case, challenges to insufficiency of another party’s disclosures, or because another party failed to disclose
w/in 14 days of discovery conference
110
Mandatory Disclosure
| 2. Expert testimony
ID and produce expert report subject to certain requirements (only those testifying)
at least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter
111
Mandatory Disclosure
| 3. Pretrial (other than for impeachment)
witness list by testimony or deposition, and documents and exhibits
at least 30 days before trial
within 14 days after disclosures are made or else waived unless excused by court for good cause or pursuant to relevance rules of the FRE
112
responding to discovery requests
30 days!
113
Enforcement
| 2 ways
1. Motion to compel—party can move to compel disclosure or discovery against party failing to make automatic disclosures, or to respond to discovery requests (including evasive or incomplete disclosure)
2. Sanctions—if party fails to obey a court order regarding discovery, court may impose sanctions subject to the abuse of discretion standard
114
summary judgment filed
30 days after close of discovery
115
default judgment
(when party fails to defend)
116
voluntary dismissal
(can be filed w/out prejudice (unless same claim dismissed by P in prior action) any time before opposing party serves answer, motion for summary judgment or dismissal
117
involuntary dismissal
(when P fails to prosecute or comply with the rules of civil procedure or court order, D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits)
