Flashcards in Quick Fed Civ Pro Deck (69):
What's the Constitutional PJ test?
1) Contact = Purposeful Availment (to such a degree that P is essentially at home) + Forseeability
2) Relatedness = Gen v. Specific
3) Fairness = burden/convenience or state's interest or P's interest
What is citizenship of corporation for purposes of SMJ?
1) Every state or country where incorporated AND 2) one state or country of PPB
What is the citizenship of unincirportaed association (LLC or partnership)?
The citizenship of ALL its members...NOT where incoprorated or PPB
How do you get a case in under supplemental JDX?
If not diversity of Fed Q, 2 steps:
1) the test - claim must share a COMMON NUCLES OF OPERATIVE FACT, must ARISE FROM THE SAME T/O as underlying case
2) In diversity cases, the P cannot add a claim through Supp jdx (unless there are 2 Plaintiffs, and the second plaitiff does not meet the amount in controversy, he cad add his claim through diversity)
What cases can be removed?
D can remove a case that meets the requirements for Div of citizenship or FQ. 2 big exceptions for cases being removed on diversity basis:
1) no removal if any D is a citizen of the forum AND
2) no removal more than 1 year after the case was filed in state court
In diversity cases, who's law applies?
1) is there a federal law on point that directly conflicts with state law? if so, apply federal law (supremacy clause)
2) if there is no federal law on pint judge must apply state law if the issue is substantive (4 issues are clearly substantive 1) elements of a claim 2) SoL 3) rules for tolling SoLs 4) Conflicts of law issues)0
Where is Venue proper?
P may lay venue in any district where, ALL D's reside or a substantial part of the claim arose....If ALL Ds reside in different districs of the forum state, P can lay venue in the district where any D resides.
Transfer of Venue
Fed district court may transfer the case to andother fed distr court - can only transfer to a district where the case could have been filed, and has PJ over D. (must be proper despite waiver - Always discretionary
a) statement of grounds of SMJ
b) short and plain statement of the claim, showing entitled to relief
c) demand for relief sought
What are the waiveable 12(b) defenses?
1) Lack of SMJ
2)Lack of PJ
3) improper venue
4) improper process -problem w/papers
5) improper service of process
6) failure to state a claim
7)failure to join indespensible party
2-5 waiveable, must be put in first rule 12 response motion or answer, or else they are waived
What type of counter claim is compulsory?
arises from the same T/O as P's claim. (any other claim is permissive)
How do you change a D after the SoL has run?
1) same T/O as original D
2) new party Knew of this case within 90 days of its filing
3) also knew, that but for a mistake would have been named originally
What are the required disclosures and when must they be filed?
1) Initial disclosures (IDs of persons and documents and things) - within 14 days of Rule 26(f)
2) Expert Witnesses (later in the case when directed by court)
3)Pretrial required disclosure - No later than 30 days before trial evidence
What is Qualified Work Product?
work product may be discoverable IF 1) opposing party has a substantial need and 2) it is not otherwise available
When can you have multi-party litigation? P or D
1) Arise from same T/O
2) raise at least 1 common question
What parties are neccesary and indespensible?
They are required when:
a) the court cannot accord complete relief among existing parties worried about multiple suits
BB) A's interest may be harmed if he is not joined
C) a claims an interest that subjects a party (usually D) to a risk of multiple obligations
What is impleader?
when d brings in another party usually for indemnity or contribution. - Never compulsory
When can a new party Intervene?
When his interest would be harmed if he did not intervene
What are the class action requirements?
Must demonstrate all 4:
B) Commonality - some issue in common to all class members, so issue will generate anwsers for all class
C) Typicality - Reps claims are typical of those of the class AND
D) Representative adequate - the class reps will fairly and adequately represent class
What are the elements of claim preclusion (Res Judicata)
you only get to sue on a claim once.
1) same claimant against the same D
2) case 1 ended in a valid final judgment on the merits
3) case 1 and case 2 asserted the same claim (same claim = any claim arrising out of the same T/O)
What are the issue preclusion elements?
Narrower than res judicata
1) valid final judgment on the merits
2) same issue was actually litigated and determined
3) issues was essential to the judgment in case 1
4) can only be used against somebody who was a party to case 1
5) full chance to litigate in case 1
When can temporary restraining order be issued Ex Parte without notice?
if the moving party does the following:
1) gives spefici facts of immediate irreparable injury
2) certifies in writing efforts made to Def
3) provides bond
When are 3rd Party claims permitted?
Only if the non-party is or may be liable for any part of a judgment (look out for state laws that don't allow for joint tortfeasors - would make third party claim impermissible)
When is voluntary dissmissal permissible?
before the answer; otherwise, only when all parties stipulate or by leave of court
When can a clerk enter default judgment, verse when a judge can.
A clerk can only enter default judgment when a Defendant has not appeared at all (and can do so without the D receiving any further notice). once they have appeared at least once, only the judge can do it.
can default judgments be enforced in another state under full faith and credit?
NO. subject to collateral attack rule
When do minimum contacts exists (for purposes of Pjdx)?
contacts between forum state and out of state D, do not offend "TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE (Intl Shoe)"
* Purposefully availed Balancing Test: 1) quantity and nature of D's contsacts 2) their connection with the cause of action and 3) interest of the forum in protecting its citizens
(if sales by incidental advertising - national publications - no purposeful availment) - if no purposeful availament it also fails the fairness test.
Can party call additional witnesses after pre-trial conference if not in pretrial order?
Yes, if the court modifies the pre-trial order.
When is a party who responds to an interogatorry under a duty to supplement a past response?
if he knows that the response, theough correct when made, is no longer true, and a failure to amend the response is in substance a knowing concealment.
Can orders denying an injunction be appeales in federal court?
Yes, immediately appealable (absolute right, immediate harm, not a requirement)
When must notice be given to other class action class members in a class action?
Only in "common question" class actions. Other types of class action notice not required.
Claim Preclusion =
Issue Preclusion =
CP = Res Judicata (merger and bar apply)
IP = Collateral Estoppel
When do a fewer contacts suffice for in personam jdx?
If those contacts are directly related to the cause of action.
Can imporper venue be waived?
Yes. D may inform the P that he will waive any objection to venue.
What is interpleader and when do you file it?
When the P is in possession of property claimed by two or more parties, interpleader action will require them to litigate amongst themselves
Must D disclose the existence of an insurance policy?
Yes. FRCP 26(b)(2) expressly permits discovery of insurance agreements as an intial disclosure
In a class action brougt under diversity jdx, whose citizenship is considered in determining whether diveristy is present.
only the citizenships of the NAMED representatives
How can a D defeat a motion for summary judgment?
D must counter disputed facts with actual evidence, otherwise deemed admitted (not enough to just deny)
Is juror misconduct proper grounds for granting a new trial? and what are some examples of this?
YES, jurors are not allowed to engage in independant experiments or reasearch outside the jury room.
When a non-party wished to use issue preclusion in a case, what is the standard the judge uses to determine if it will be allowed?
court will consider whether it would be fair and equitable
When can venue be proper in the P's district?
federal venue statute provides that a non-resident of the US may be sued in any district
What are the requirements for a D to add a 3rd party claim?
a D may implead a nonparty if the nonparty may be liable to the party for any part of the judgment that the P can recover against. (if this were an essay, talk about how the claim has to arise out of the same T/O first)
In absence of an applicable federal statute, whose applicable SoL do federal courts ordinarily adopt?
For div claims, fed courts apply the limitation perios of the state whose law governs the merits of an action.
For FedQuestion claims, is statute has no specifc SoL, fed courts usually adopt the limitation period of the most analogous state law claim.
What are the two types on interpleader and what are the procedural requirements?
Rule 22 Interpleader
Statutory Interpleader (minimal diversity)
Once a Defendant has properly removed a case to Fed court, does the P have any recourse?
Yes, can move to remand, but only if jdx was not properly removed or because federal lacks SMjdx
Generally, only FINAL ORDERS are reviewable on appeal. A final order is one that disposes of the whole case on the merits. However certain interlocutory orders are also reviewable. What are these?
Interlocutory Orders as of right:
Injunctions, Receivers, Admiralty, patent infringement, property possession
Interlocutory Appeals Act:
discretionary and may be available when:
1) a) the trial judge CERTIFIES that the interlocutory order involves a CONTROLLING QUESTION OF LAW,
b) which there is a SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION and
c) immediate appeal from the order may MATERIALLY ADVANCE the ULTIMATE TERMINATION of the litigation AND
2) the court of appeals then agrees to allow the appeal. A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where 2/3 judges must agree to hear the appeal (venue not appealable here)
When may default judgment be entered by a clerk?
Only when the D has failed to make any appearence, AND the amount is for a SUM certain. if claim is for "lost revenue and profits" must be entered by the judge.
A party may amend its pleading once as a matter of course within 21 days after service of motion otherwise:
only with opposing partie's written consent
the court's leave, court should freely give leave WHEN JUSTICE SO REQUIRES
Amended complaints that don't relate back to the original complaint can be barred by the SoL
What are the required disclosures, that need be provided even without a discovery request?
1) names and addresses of individuals likely to have discoverable info
2) copy or description by cat and location of all docs, ESI and tangible things used to support claims or defenses
3) computation of eahc category of damages
What is the citizenship of a limited liability corporation?
citizens of every state where one of their members is a citizen
Partnerships take the citizenship of the _______not its___________
citizenship of the partners; not its principle place of business
Is a new trial available if its found out after the trial that one of the jurors lied during Voir Dire?
Yes. if the juror gave false information or omitted material facts related to her qualification, a new trial is appropriate
What is the test for constitutional personal jdx "minimum contacts" balancing test?
1) the quantity and nature of the D's contacts with the forum
2) their CONNECTION WITH THE CAUSE of action and
3) the INTEREST of the forum in PROTECTING ITS CITIZENS
What is the International Shoe test?
The court must look to see whether there are SUFFICIENT MINIMUM CONTACTS betweeen the forum state and out of state D so that the suit does not offend TRADITIONAL NOTIONS OF FAIR PLAY and SUBSTANTIAL JUSTICE.
What is the difference between "Testifying Expert Depositions" and "Consulting Expet Depositions"?
TED - depositions of those who will be testifying in trial. Must disclose all reports prepared that the testimony will be based in
CED - retained in anticipation of litigation, but won't be testifying. Can't depose UNLESS,
1) there is a SHOWING OF EXCEPTIONAL CIRCUMSTANCES or
2) it is IMPRACTICAL to obtain the facts or opinions by other means.
Can someone become of holder in due course if they take a forged instrument for value, without knowledge of the forgery?
NO. no title will pass, because the payee's signature must FIRST BE AUTHORIZED and valid for the INSTRUMENT TO BE NEGOTIABLE.
Forging the payee's name BREAKS THE CHAIN OF TITLE and no subsequent possessors can qualify as HDCs.
Any presumed HDC who presents the check for payment will be in violation of the WARRANT OF PRESENTMENT (the presenter is entitled to enforce the instrument).
If a check payable to a particular person is lost or stolen before it is endorsed by the payee, the payee________
retains ownership of the check, and can still be paid by the issuer
For purposes of venue, a corporations is deemed to reside______________
in each district where it has sufficient contacts to justify personal jurisdiction
A party _______provide to the other party copies or descriptions of electronically stored information that is in the disclosing party's ________or__________ and that the disclosing party may use to support its claims or defenses.
MUST (even wihtout a request);
Possession or Control
When must a D reveal the identity of a key eyewitness to the opposing party during discovery?
If either the D might call the eyewitness as a a witness at trial or the P request the identiy of the eyewitness in a proper discovery request
When may a default judgment be set aside?
Any final judgment on the merits (including default judgments) may be set aside when:
1) mistake, inadvertance, surprise or excusable neglect;
2) newly discovered evidence
3) fraud or misrepresentation
4) judgement is void
5) judgment has been satisfied
What are the advantages for a Defendant to remove to federal court?
1) right to appeal is automatic (discretionary in state court)
2) fed court is drawn from a much larger jury pool that the jury pool of the city
3) longer period of time within which to appeal
4) there is a right to a trial by jury
If a Defendant is in default, A default judgment may be entered by the clerk only_________. If not, default must be entered by the judge and the Defendant___________
if it is for a sum certain.
Is not entitled to any notice
An action is not removable on the basis of diversity jdx, even if meets other qualifications for removal IF_____________
ANY ONE OF THE DEFENDANTS IS A CITIZEN OF THE STATE IN WHICH THE ACTION WAS BROUGHT.
A federal court is prohibited from enjoining pending state court proceedings unless it is:
1) expressly authorized by statute
2) Necessary and in the aid of its jurisdiction
3) necessary to protect or effectuate its judgments
If the same case is brought in both federal court by one party and state court by the other party, what is an option to prevent duplicative litigation?
The P could attempt to convince the federal court to ENJOIN the state court from proceeding in teh state action. (abstention not appropriate MERELY to avoid duplicative litigation)
Claim Preclusion - AKA Res Judicata elements?
1) judgment must be a valid final judgment on the merits
2) the cases must be brought by the same claimant against the same defendant (in the same configuration) AND
3) the same "cause of action" must be involved in the later lawsuit
A motion for a new trial may be granted for a number of reason, including?
1) an error that occurred during trial
2) when the verdict is against the weight of the evidence
3) the verdict is excessive