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Civ Pro II > Second Half > Flashcards

Second Half Flashcards

1
Q

What is the point of venue?

A

Venue decides WHICH federal district court gets to hear the case within the state.

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2
Q

Venue: 28 USC §1391 b(1-3)

A

(1) can be brought in a judicial district where any defendant resides if all defendants are residents of the state in which the district is located.

(2) can be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or where substantial part of property that is the subject of the action is.

(3) IF no district based on 1-2 (this is last resort), can bring in any district in which any defendant is subject to the courts personal jurisdiction for such action. (this means parties can agree to venue, bc parties can agree to PJ).

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3
Q

Venue: what can a court do if they find the case has improper venue? (venue does NOT exist in this court)

A

28 USC 1406 may
1. dismiss (not with prejudice) OR
2. Transfer to any district/division in which it could have been brought (ONLY BETWEEN FED COURTS NEVER STATE) if in the interest of justice.

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4
Q

Venue: Forum non Conveniens

A

28 USC 1404(a)

District court may transfer civil action to another district if for the convenience of the parties in the interest of justice.

ONLY available where the alternative court is FOREIGN. When you hear FNC, assume other forum is foreign.

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5
Q

Pleading: what must be included in a pleading?

A

FRCP 8a
(i) basis of jurisdiction
(ii) short and plain statement of the claim showing that the pleader is entitled to relief and
(iii) prayer/demand for judgment for the relief sought.

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6
Q

Pleading: how much detail is sufficient in a complaint? Conley

A

Can’t be 12b6 unless plaintiff can prove “no set of facts in support of his claim which would entitle him to relief.”

If you can prove one relevant fact, it is sufficient. Claim that Kim stole my phone = relevant fact = I don’t have my phone anymore.

VERY advantageous to plaintiffs (almost any claim survives).
Helps ligitimately aggrieved plaintiffs who don’t have proof yet get to disco to obtain it.

Downside = Disco is super expensive, so that may compel D’s to settle a frivolous claim bc it is cheaper.

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7
Q

Pleading: how much detail is sufficient in complaint? Twombly

A

Antitrust claim
Evidence only of parallel conduct (COULD be competitive behavior)
SCOTUS: 12b6. Not sufficient. We require enough facts to show that the claim is plausible on its face. Bc the plaintiffs have not nudged their claim across the line from conceivable to plausible.

Confusion after twombly: Okay, does this just apply to antitrust?

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8
Q

Pleading: how much detail is sufficient in complaint? Iqbal

A

One sentence summary: Plausibility standard applies to everything, not just antitrust.

“recitals of elements of COA supported by mere conclusory statements do not suffice.”

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9
Q

Pleading: plausibility Pros/Cons

A

Pros:
Plausibility is a significant obstacle to plaintiffs bringing frivolous claims.

Cons:
Plausibility requirement is a significant obstacle to plaintiffs bringing legitimate claims.
What if the facts you need to survive plausibility pleading are kept by the defendant?

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10
Q

Disco: Initial disclosures

A

Party must without request provide:
name + contact info of everyone who is likely to have relevant information that the DISCLOSING PARTY may use to support its claim or defense.

If you want to make an argument, you must disclose location of relevant info to that argument.

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11
Q

Disco: enforcement for irrational litigants who flout discovery

A

37 = penalties for failure to comply with disco

11 = attorney sanctions for lying to court

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12
Q

Disco: Spoliation

A

Once a party REASONABLY ANTICIPATES LITIGATION there are a number of steps counsel should take to ensure compliance with preservation obligations.
1. Litigation hold (preserve key docs)
2. Communicated with key players (ppl identified in initial disclosure)
3. Have employees produce e-copies of relevant active files

See Zubalake

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13
Q

Disco: Disco Tools

A

34 = requests for production
45 = requests for production for non-parties via subpoena
33 = interrogatories (25 limit)
36 = requests for admission (matter is admitted unless denied within 30 days)
30 = depositions
35 = mental/physical evaluation if it is controversy

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14
Q

Disco: Scope — Relevance

A

Legal relevance means that the information must tend to prove or disprove something the governing substantive law says matters.

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15
Q

Disco: scope — proportionality

A

Proportionate to the needs of the case.

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16
Q

Disco: Scope — Attorney-client privilege

A

Most communications between a client and lawyer concerning the case cannot be disclosed.

Exceptions: if client releases lawyers from confidentiality or statements intended to further or conceal a crime.

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17
Q

Disco: Scope — Work Product (Hickman Levels)

A

Level 1 = Absolute immunity: thoughts, mental impressions, and theories of attorneys.
Level 2 = Qualified immunity: materials prepared in anticipation of litigation protected, but can be overcome by showing of substantial need and undue hardship

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18
Q

SJ generally and trick lookout

A

When Ps and D’s have no material factual dispute, court can decide the case as a matter of law without trial.

Look out for MATERIAL trick. dispute about something immaterial (color of hat or something).

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19
Q

What does subject matter jurisdiction determine?

A

SMJ determines what kinds of cases must be filed in state court, federal court, or either.

Article III §2 “federal courts are courts of limited subject matter jurisdiction

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20
Q

SMJ: Two prongs of SMJ

A
  1. These cases brought to federal court must fall under “certain subjects”
  2. The case must be a live case or controversy (standing)
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21
Q

When can SMJ be raised as a defense during the suit?

A

At any time! ticking time bomb.

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22
Q

SMJ: Tactical considerations for State AG.

A

AG often brings suits on behalf of the people in the state.
AG therefore likes to bring suits to state court in front of elected judges (d wants to remove)

D wants to remove… so solution = AG’s tactic = don’t bring a federal law claims (AG can’t be a citizen).

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23
Q

SMJ: What is federal question jurisdiction?

A

28 USC 1331

The DC shall have original jurisdiction of all civil actions ARISING UNDER federal law.

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24
Q

SMJ: Federal Question Jurisdiction — What does “arising under” mean?

A

The requires that the plaintiff’s cause of action (needs to be in the claim) be based on federal law/constitution.
Ask: are the p’s suing to enforce a federal right (a right given to them by federal law)?

The possibility of a defendant invoking federal law as a defense and the plaintiff invoking federal law to rebut the defense does not arise out of federal law, even when the possibility is 100%.

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25
Q

SMJ: Diversity Jurisdiction requirements

A

Diversity jurisdiction requires BOTH

  1. Diversity of citizenship
  2. Amount in controversy must exceed 75k
26
Q

SMJ: Diversity — Complete diversity, rationale & exceptions

A

Complete diversity = no overlap between state citizenship across the aisle (P/D)
Rationale = if it was in state court, that court would favor the side with citizenship in their state. If there are citizens on both sides, less/no risk for bias.

Exceptions (do not require complete diversity) = class actions governed by the Class Action Fairness Act 28 USC 1332
As long as at least 100 plaintiffs and ONE plaintiff’s citizenship is different from any of the D’s, diversity exists.

27
Q

SMJ: diversity — when does diversity of citizenship exist according to 18 USC 1332a?

A

(1) citizens of different states
(2) citizens of a state v. citizens of a foreign state
(3) citizens of different states and citizens of a foreign state are additional parties (think (1) + some foreign parties)
(4) a foreign state as a plaintiff v. citizens of a state or different states

28
Q

SMJ: diversity — when is diversity determined?

A

WHEN THE PLAINTIFF BRINGS THE COMPLAINT.

When the action is brought, pause time and figure out citizenship at that time.

29
Q

SMJ: How it citizenship determined for individuals (three scenarios)

A
  1. If you have a US passport or green card and live in US.
    You are a citizen of the state where you are domiciled (the state a person considers their permanent home — place they intend to return if temporarily away for any reason)
  2. If you are a foreign national without a green card living in US
    You are a citizen of your home country for diversity jurisdiction purposes.
  3. If you have a US passport but live overseas
    You can establish “citizenship” in US state if you can prove you are domiciled there
30
Q

SMJ: Diversity — how is citizenship determined for corporations?

A

28 USC 1332(c)1

Corporations are citizens of BOTH
1. The state where they are incorporated AND
2. The place with their principal place of business

31
Q

SMJ: Diversity — where is a corporations “principal place of business “?

A

Nerve center test = the actual center of direction, control, and coordination.
HQ provided that the HQ is the actual center of direction, control and coordination and not simply an office where the corporation holds its board meetings.

Hertz Corp v. Friend

32
Q

SMJ: Diversity — Amount in controversy requirement and exception

A

Claim itself required to be over 75k alleged in good faith.
Applies to both damages and specific performance (value of SP)

May COMBINE damages from two claims in the same action (don’t have to be related at all) if they are between one plaintiff and one defendant.

Exception = Class actions governed by CAFA = even if no P meets amount in controversy, if the aggregated amount is above 5mil, it meets the amount in controversy requirement.

33
Q

What state is the state government (or AG) a citizen of for diversity jurisdiction?

A

State gov is not a citizen.

34
Q

Can state courts hear cases where plaintiff and defendant are from different states?

A

Yes. Either state or federal court can, but no amount in controversy minimum for state court

35
Q

What is supplemental jurisdiction?

A

Supp jur allows federal courts to hear state law claims that would normally be barred.

The relationship between the claim that has SMJ in federal court (anchor claim) and state claim permits the conclusion that the entire action constitutes “one constitutional case.”

36
Q

Supplemental: What makes federal and state law claims “one constitutional case”?

A
  1. Derive from a “common nucleus of operative fact”
    — Arising materially from the same set of events.
  2. Plaintiff would ordinarily be expected to try the federal court and state law claims in one judicial proceeding.
37
Q

Supplemental: When is supp jur NOT applicable? Joiner

A

In diversity cases p cannot sup j claims against parties joined via joinder

38
Q

Supplemental: discretionary authority

A

Federal courts need not exercise supp j even when they can if:
1. state claim raises novel or complex issue of state law
2. state claw claim predominates
3. Fed court dismissed all anchor claims
4. “in exceptional circumstances”

39
Q

Removal: When may a defendant remove?

A

D may remove a case from state court to federal court if:
1. The plaintiff brought the case in state court BUT
2. The plaintiff could have brought the case in federal court (fed court had SMJ through federal question/diversity jurisdiction/supp j)

40
Q

Removal: rationale of removal

A

Out of state D are likely to face bias in state court (home field advantage)
This bias exists a lot less in federal courts (appointed)
P’s try to take advantage of this by filing in state court.

So removal is a tool to blunt this advantage.

41
Q

Removal: what district is the case removed to?

A

To the federal district that the state court it was filed in is located.

42
Q

When is the case removed?

A

Case immediately removed when D files a “notice of removal”.

P, if they want to dispute, will then have to file a motion before the federal court to demand the case back to state court after the case has already been removed.

43
Q

Removal: intricacies / procedural

A

— All D’s must agree for removal
— the case can be removed within 30 days of when it first became removable if within one year of the complaint being filed.
— Exception to ^ timeframe = when P acted in bad faith to prevent the removal.
— FOR DIVERSITY ONLY a case cannot be removed despite complete diversity if one of the D’s is a citizen of the forum state.

44
Q

Standing: what is standing?

A

SMJ requirement of a live controversy — is there actually something to sue about? Do you as the plaintiff have enough direct material interest in the case to sue?

45
Q

Standing: three constitutional requirements for standing (unwaivable)

A
  1. Injury in fact — invasion of legally protected interests which is actual and imminent, and not speculative or hypothetical)
  2. Causation — injury must have been a cause of what you are suing them for.
  3. Redressability — the court must be able to do something to make you whole.
46
Q

Standing: Waivable legislature created standing requirements

A
  1. No generalized grievances
  2. No third party standing
47
Q

Joinder: claim joinder

A

Permissive. May join as many against a party as they have (as long as they all have SMJ)

48
Q

Joinder: impleader

A

Defending party may drag in another party who may be liable for all or part of the claim against it.

(not allowed by P to use Supp J)

49
Q

Joinder: interpleader

A

A party who (1) holds something of value (2) that might be claimed by two or more ADVERSE claimants can force those claimants into the same lawsuit to sort out their claims.

50
Q

Joinder: Statutory USC v FRCP interpleader

A

Statutory USC = minimal diversity citizenship required ( + only 500 amount in controversy)
FRCP = Separate source of diversity jurisdiction required (diversity or fed question)

51
Q

Joinder: permissive party joinder

A

MAY join parties as long as they (1) arise under same T/O and (2) involve the same question of law or fact

52
Q

Joinder: required parties

A

“Necessary” Parties FRCP 19(a)
□ Plaintiff 2 must join plaintiff 1 if:
1. Joinder is feasible (can proceed without them lol).
2. Joinder doesn’t destroy SMJ (e.g. diversity).
3. Without joinder, court cannot grant complete relief or exposes a party to multiple / inconsistent relief.
4. Joinder doesn’t render venue improper.

“Indispensable” Parties FRCP 19(b)
□ Third party MUST (actually must) join the case, if there would be no case to try without the third party.
® Without an “indispensable” party, the court must dismiss.
Contrast: without a necessary party, the court might still proceed.

53
Q

Claim Preclusion (res judicata) elements

A
  1. the second attempt features the same cause of action
  2. the second attempt features the same parties
  3. the first attempted ended in a final judgment on the merits
54
Q

Issue preclusion (collateral estoppel) elements

A
  1. Issue was actually litigated and the court resolved it the first time
  2. Issue preclusion targets one party from the first case who had adequate incentive and opportunity to litigate the issue.
  3. The court rendered a valid final judgment in the first suit
  4. The issue was essentially to the final judgment in the first suit
55
Q

Erie: When do Erie issues come up?

A

Only when a federal court is hearing a state law claim (so diversity or supp j)

56
Q

Erie: Pre-erie rule and problems

A

When hearing state law, federal courts were to follow state statutory law and federal common law.

Problems:
1. federal courts create state law contradicting (and controlling) state case law
2. Rampant forum shopping by plaintiffs

57
Q

Erie: impact and aims

A

General federal common law is abolished.

“Rules of decisions” concerning state law claims are now: (1) state statutory law and (2) state case law.

Aims:
— Avoid unfair administrations of the law
—- Discourage forum shopping

58
Q

My Erie flowchart

A
59
Q

Erie: How does Erie treat “choice of law”

A

Erie says that “choice of law” rules (which state’s law governs) is SUBSTANTIVE

So the state law decides which state’s law applies.

60
Q

Two common choice of law approaches

A
  1. Lex Loci (place of the even) rule = the law of the state where one event happened (tort occurred, death, contract entered, contract breached, etc)
  2. Most significant relationship rule = the law of the state that has the largest number of material contacts to the case.
61
Q

Erie: is all federal common law dead?

A

No — only general common law.

Federal courts still create common law in certain narrow issues/topics (claim preclusion)

62
Q

Erie: what is the state substantive law is unclear on the matter?

A
  1. predict how the state court would rule
  2. ask the state court how it would rule

Civ Pro II (3 decks)

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