06. Civil Procedure Flashcards
1
Q
What is the home-court-advantage rule?
A
A rule that prohibits removal from state to federal court when:
1) The federal court’s SMJ arises from diversity jurisdiction; AND
2) A defendant is a citizen of the state where the case was filed
2
Q
When is the defense of lack of personal jurisdiction waived?
A
When it is not asserted in a pre-answer motion or an answer, whichever occurs first
3
Q
When does specific jurisdiction exist?
A
1) The plaintiff’s claim arises from the defendant’s minimum contacts with the forum state; AND
2) The exercise of jurisdiction would comply with notions of fair play and substantial justice
4
Q
How is personal jurisdiction established?
A
1) General jurisdiction
2) Specific jurisdiction
5
Q
For federal question jurisdiction, where is venue proper?
A
Venue is proper in any federal district where:
1) Any defendant resides, as long as all defendants reside in the same sate;
2) A substantial part of the events occurred or a substantial part of the property at issue is located; OR
3) Any defendant is subject to the court’s personal jurisdiction (if the first 2 don’t apply)
6
Q
What items must an answer include?
A
1) Admissions and denials
2) Motions that have not been waived
3) Affirmative defenses
4) Compulsory counterclaims
7
Q
What happens if a required item is not included in an answer?
A
The items not included are waived
8
Q
What must the court do when considering a motion to dismiss for failure to state a claim?
A
1) Treat all well-pleaded facts in the complaint as true; AND
2) View the evidence and draw all reasonable inferences in the light most favorable to the nonmovant
9
Q
When may a federal court exercise supplemental jurisdiction over claims that fall outside of its original SMJ?
A
When those claims share a common nucleus of operative facts with a claim that falls within its original SMJ
10
Q
When should summary judgement be granted?
A
When the movant shows that:
1) There is no genuine dispute as to any material fact; AND
2) The movant is entitled to judgement as a matter of law
11
Q
What is required for a jury verdict?
A
1) Verdict must be unanimous
2) Verdict must be returned by at least 6 jurors (but no more than 12)
12
Q
When may the traditional requirements for a jury verdict be altered?
A
When the parties stipulate to any changes (i.e., not requiring unanimous verdict)
13
Q
What is collateral estoppel?
A
Issue preclusion = precludes the relitigation of an issue that was actually litigated, determined, and essential to a valid final judgement on the merits
14
Q
What is mutual collateral estoppel?
A
Parties from first action assert collateral estoppel in subsequent action against other parties from first action
15
Q
What is nonmutual collateral estoppel?
A
Nonparties from first action assert collateral estoppel in subsequent action against parties from first action
16
Q
What is defensive collateral estoppel?
A
Defendant in second action asserts to avoid relitigating issue from first action
17
Q
When is offensive collateral estoppel NOT permitted?
A
1) Plaintiff could have easily joined first action
2) Defendant had little incentive to vigorously defend in first action
3) Second action affords procedural opportunities unavailable in first action; OR
4) Inconsistent findings on issue exist
18
Q
What is offensive collateral estoppel?
A
Used by a plaintiff in the second action to establish an issue from the first action
19
Q
How may a settlement of a federal class action be approved?
A
1) Approval by the court
2) AFTER the court holds a hearing AND
3) Issues findings that the settlement is fair, reasonable, and adequate
20
Q
What types of matters may a federal court NOT take, even if diversity is met?
A
1) Probate matters
2) Domestic relations
21
Q
Where is venue proper for a foreign citizen?
A
Any federal judicial district
22
Q
What happens if a poll reveals a jury verdict is unanimous?
A
Enter judgement consistent with verdict
23
Q
What happens if a poll reveals a jury verdict is NOT unanimous?
A
Direct further deliberation OR order new trial
24
Q
How is domicile for an individual changed?
A
1) Establish a physical presence in a new place; AND
2) Manifest an intent to reside there indefinitely
25
What type of issue is jury selection?
Procedural = federal law controls
26
What type of law is applied under federal-question jurisdiction?
Federal procedural & Federal substantive law
27
When may a federal court grant a preliminary injuction?
1) Success = Movant is likely to succeed on the merits
2) Irreparable Harm = Movant is likely to suffer irreparable harm in the absence of relief
3) Balance = The balance of equities is in the movant's favor
4) Public Interest = The injunction is in the best interests of the public
28
May interrogatories be served on nonparties?
No; interrogatories are a method of discovery in which a party serves written question on another party, not a nonparty (e.g., expert witness)
29
How may a party demand a jury trial (under FRCP 38)?
1) Issue = Have a triable issue (any legal claim where the amount in controversy exceeds $20)
2) Service = serve the other parties with a written jury trial demand no later than 14 calendar days after the last pleading
3) File = filing the jury trial demand with the court within a reasonable time after service of the demand
30
What type of service is required if a defendant's identity and address are known or obtainable through reasonable efforts?
Personal service or some other means likely to notify the defendant
31
When may a party NOT conduct an oral deposition without the court's leave or the parties' stipulation?
1) Ten = the deposition exceeds the 10-deposition limit
2) Early = the deposition is sought before the initial planning conference
3) Done = the deponent was already deposed in the case
32
When may an immediate appeal be available (under the interlocutory appeals statute)?
- I = Injunction
- C = Certification by district court
- C = Class action certification
- A = Appointment of receiver
- A = Admiralty cases
- C = Collateral-order doctrine
- B = Bankruptcy cases (certain orders)
- M = Mandamus (petition for writ)
- P = Patent-infringement order (accounting left)
"In Certain Circumstances, An Appeal Can Be Made Prematurely"
33
When is a compulsory counterclaim NOT waived without an assertion?
If the action is dismissed before the defendant files an answer
NOTE: the claim can be raised in a future lawsuit
34
What is required to assert the Class Action Fairness Act?
1) 100 = Class contains at least 100 members
2) Minimal = minimal diversity (at least one class member and one defendant are diverse)
3) 5 = AIC for aggregated claims exceeds $5 million
35
What is a clerical mistake?
A misstatement of the court's intent (e.g., court entered judgement for $10,000 instead of $100,000
36
When must a clerical mistake be corrected if there is an appeal?
Before appeal docketed, either on the court's own initiative (sua sponte) or by motion
37
What is an oversight or omission?
When an exclusion misrepresents the court's intent (e.g., judgement failed to include required interest in award)
38
When must an oversight or omission be corrected if there is an appeal?
After appeal docketed WITH appellate court's leave
39
When may a party seek extraordinary relief from a district court's final judgement?
WITHIN ONE YEAR from entry of final judgement:
1) Mistake, inadvertence, surprise, excusable neglect
2) Newly discovered evidence
3) Fraud, misrepresentation, misconduct
WITHIN REASONABLE TIME from entry of final judgement:
1) Void judgement (e.g., lack of jurisdiction)
2) Judgement:
- Satisfied, released, discharged
- Based on reversed or vacated judgement
- Will violate equity if applied prospectively
3) Other reason justifying relief (RARE)
40
If a defendant does not respond to damages-related allegations, are the allegations admitted?
No; damages-related allegations cannot be admitted by the defendant's failure to deny them in an answer
41
Under Erie, when is state law considered outcome determinitive?
When failing to apply state law would result in:
1) Forum-shopping; OR
2) Inequitable administration of the laws
42
When is an issue considered substantive under Erie?
1) Outcome determinative; AND
2) No countervailing federal policy interest
43
When must a request for attorney's fees be filed?
No more than 14 days after entry of final judgement
44
When must a renewed request for judgement as a matter of law be filed?
No more than 28 days after entry of final judgement
45
When must a request for a new trial be filed?
No more than 28 days after entry of final judgement
46
When must a request to alter or amend judgement be filed?
No more than 28 days after entry of final judgement
47
When must a request to correct a mistake be filed?
Freely OR with appellate court's leave if docketed
48
When must a request for extraordinary relief be filed?
Either within 1 year from entry of final judgement OR within a reasonable time, depending on the basis of relief
49
What is subject-matter jurisdiction?
The power of the court to decide this type of case
50
What is personal jurisdiction?
The power of the court to decide the rights and liabilities of this defendant
51
What is venue?
Among the courts that have SMJ and PJ, which district(s) have proper venue (location)?
52
How expansive is the subject-matter jurisdiction of federal courts?
Limited
53
How expansive is the subject-matter jurisdiction of state courts?
General and unlimited (generally)
NOTE: Unless you are given a state statute that says otherwise, assume state courts have SMJ over any kind of case
54
What is required to plead subject-matter jurisdiction?
- Basis for federal SMJ must be affirmatively pleaded in every case
- If challenged, it must be proved that there is a basis for SMJ
55
Can you waive a lack of subject-matter jurisdiction?
No, so parties cannot agree between themselves to litigate in a court that lacks SMJ. Lack of SMJ cannot be waived by falling to object or by affirmative consent
56
When may an objection to subject-matter jurisdiction be raised?
At any time by any party, including:
1) The plaintiff, who chose to go to the wrong court
2) The court itself
3) Anyone for the first time on appeal
57
What are the types of federal SMJ?
1) Federal Question Jurisdiction
2) Diversity Jurisdiction
58
What is the basis for Federal Question Jurisdiction?
A claim that arises under federal law
59
What is required for a well-pleaded complaint?
1) Claim must be based on federal law
2) Look at the face of the well-pleaded complaint:
a) Only the plaintiff's claims count for determining FQJ; the existence of a federal defense does not matter
b) Plaintiff does not need to anticipate or plead a response to a defense. A federal defense does not count for FQJ, even if it is important.
59
What is required for diversity jurisdiction?
Cases between citizens of different states, or citizens of a state and a foreign country, if the amount in controversy exceeds $75,000, exclusive of interest and costs
1) Diversity
2) AIC > $75,000
60
What types of cases CANNOT be brought in federal court under diversity jurisdiction?
1) Probate
2) Domestic relations
61
When must diversity exist?
When the complaint is filed.
It doesn't matter if diversity didn't exist when the cause of action arose or if it no longer exists at trial
62
What is complete diversity?
Every citizenship represented on the plaintiff's side must be different from every citizenship represented on the defendant's side
63
T or F: Every plaintiff must be diverse from the other plaintiffs for complete diversity
False; complete diversity does NOT mean every plaintiff must be diverse from every other plaintiff or that the defendant must be diverse from every other defendant. Diversity must only be complete as between plaintiffs and defendants (on either side of the "v")
64
What is minimal diversity?
Exists when any plaintiff is diverse from any defendant, even if other plaintiffs and defendants overlap
65
When is minimal diversity permitted?
1) Federal Interpleader Act = statutory interpleader
2) Class Action Fairness Act = Class actions with at least 100 class members and claims worth more than $5 million
3) Interstate Mass Torts = at least 75 natural persons have died in one accident and the plaintiffs and defendants are from many different states (e.g., airplane crash)
66
Where is an individual a citizen?
State or country of domicile
67
How is domicile determined for an individual?
Permanent residence (residence + intent to remain indefinitely)
68
How many legal domiciles may an individual have at any one time?
1 (for purposes of jurisdiction)
69
For a citizen of a foreign country who has been admitted to the US as a permanent resident, where is their citizenship?
The state where they are domiciled
70
When dealing with a representative, whose citizenship will control?
The representative party's citizenship
71
When will a representative party's citizenship not control for purposes of diversity jurisdiction?
1) Estates = citizenship of decedent controls
2) Legal guardianship = citizenship of minor or incompetent person controls
72
Whose citizenship matters for purposes of diversity jurisdiction in a class action?
Named or representative parties
73
Where are corporations citizens?
1) The state, states, or foreign countries in which it is incorporated; AND
2) The state or country where it has its principal place of business (where its executive officers are located)
74
Where are partnerships and unincorporated associations citizens?
Every state of which its members are citizens
75
Are actions that create or destroy diversity permitted?
Yes, so long as they are not "shams" or fraudulent
76
Are you allowed to move if there is a case with diversity jurisdiction?
Yes, even if it is done with the purpose of affecting diversity, so long as the change in domicile is genuine, not a sham
77
Are you allowed to assign a claim to escape diversity?
Yes, so long as the assignment is real (for value), complete, and not collusive
78
When does partial assignment of a claim NOT affect citizenship?
For purposes of debt collection, so long as the assignor retains an interest in the claim
79
For diversity jurisdiction, does the plaintiff need to actually recover more than $75,000?
No; any good faith allegation will suffice. Only when it appears to a legal certainty that the AIC will not be met will the court dismiss the case for lack of AIC.
80
What does aggregation mean?
Adding up smaller claims to exceed the required AIC ($75,000)
81
Can the plaintiff aggregate claims when there is one plaintiff versus one defendant?
Yes, regardless of whether the claims are related
82
Can the plaintiff aggregate claims when there is one plaintiff versus two or more defendants?
No; claims against each defendant must total more than $75,000
83
Can the plaintiff aggregate claims when there are two or more plaintiffs versus one defendant?
No; each plaintiff must be seeking more than $75,000 from the defendant
84
Under FRCP 16, what is considered sanctionable conduct for noncompliance with pretrial conference or order?
1) Failure to attend pretrial conference
2) Substantially unprepared for conference
3) No good-faith participation in conference
4) Failure to obey pretrial order
85
Under FRCP 16, what is the required sanction for noncompliance with pretrial conference or order?
Payment of reasonable expenses UNLESS:
- Noncompliance substantially justified OR
- Award of expenses is unjust
86
Under FRCP 16, what are the permissible sanctions for noncompliance with pretrial conference or order?
1) Dismiss action in whole or in part
2) Strike pleadings in whole or in part
3) Hold in contempt of court
4) Issue default judgement
5) Prohibit use of evidence
6) Stay further proceedings
"D-SHIPS"
87
What is a motion for judgement as a matter of law?
A request that the court issue a judgement in favor of the movant because the evidence is legally insufficient for a reasonable jury to find in the nonmovant's favor.
88
What happens if the court grants a defendant's motion for involuntary dismissal?
The case will be dismissed with prejudice by default, unless the court states otherwise
89
What is a voluntary dismissal?
When the plaintiff moves to dismiss the suit
90
What is an involuntary dismissal?
When the defendant moves to dismiss the suit
91
What happens if the court orders a reply and allegations are not responded to?
Any allegation in the answer that requires a response and is not denied in the reply is deemed ADMITTED by the plaintiff
91
What happens if the court does not order a reply and allegations are not responded to?
Allegations in the answer are deemed DENIED by the plaintiff
92
What does it mean for a court to enter a final judgement?
It means the decision fully resolves the merits of a dispute, leaving nothing but enforcement
92
When is permissive joinder appropriate?
1) The claims asserted by or against the joined parties arise from the same transaction, occurrence, or series thereof; AND
2) A common question of law or fact will arise among them
93
When should a motion to sever claims be granted?
If the defendants are improperly joined
94
Is the availability of a defense substantive or procedural?
Procedural
95
Where is venue proper?
In any federal district where:
1) D's in Same State = Any defendant resides so long as all defendants reside in the same state;
2) Events = A substantial portion of the events occurred;
3) Land = A substantial part of the property at issue is located; OR
4) Any defendant is subject to personal jurisdiction - but only if 1-3 do not exist
96
How can sanction proceedings be initated?
1) By a party's motion; OR
2) On the court's own initiative, so long as the judge issues an order to show cause
97
What is the function of impleader?
Allows a defendant to add a nonparty who may be liable to the defendant for all or party of the plaintiff's claim.
98
When will an amended complaint relate back to the date of the original complaint?
(1) the same occurrence is at issue;
(2) the new party received notice of the suit within 90 days after the original complaint was filed; AND
(3) the new party knew or should have known that it would have been sued but for a mistake about its identity.
99
What is removal?
Moves case from state court to federal court
100
What is transfer?
Moves case from one federal court to another federal court
101
What is the general rule for removal?
Removal is proper ONLY if the case could have been brought originally in federal court
NOTE:
- Only defendants may remove (all D's must consent to removal within 30 days of service)
- ASK: If the plaintiff had chosen to sue in federal court in the first place, would the federal court have had subject-matter jurisdiction?
102
What is the "Well-Pleaded Complaint" rule?
Federal question jurisdiction depends on whether the federal question appears on the face of the well-pleaded complaint.
103
How does the "Well-Pleaded Complaint" rule apply in removal?
Removal does not change the rule. If the well-pleaded complaint discloses that the plaintiff's claim is based on federal law, then the defendant may remove to federal court. However, if the plaintiff's claim is based on state law, defendant may NOT remove to federal court, even if the defendant has raised a federal defense.
104
When is removal based on diversity jurisdiction proper?
Only if:
1) There is complete diversity;
2) The amount in controversy exceeds $75,000; AND
3) The action is brought in a state of which no defendant is a citizen
105
What is the time limit on removal?
One-year limit = Must remove within one year of the commencement of the action in state court, unless the plaintiff acted in bad faith to make the case non-removable
106
What are the procedures for removal?
1) Notice & File = A notice of removal is filed in the federal court, with a copy to the state court
2) Auto-End = When the removal notice is filed, the state court's jurisdiction ends automatically
107
What happens if removal is improper?
Plaintiff can file in federal court a petition for remand, and it is on that petition that the federal court will hold a hearing:
- If removal is PROPER = remand is denied, and case stays in federal court
- If removal is IMPROPER = remand is granted, and case goes back to state court
NOTE: Removal is automatic, and then the decision about whether it was proper is done on a petition for remand by the federal court
108
Civil Procedure Key Topics
1. Subject Matter Jurisdiction: FQ, Div, Sup, Removal
2. Personal Jurisdiction: People, Things, Notice
3. Venue
4. Choice of Law (Erie)
5. Pleadings: Service, Injunctions, Complaint, Motions, Answer, Reply, Amendments, Sanctions (SICk MARAS)
6. Multiple Parties and Claims: Joinder of Parties (Intervention, Interpleader), Joinder of Claims (Permissive, Counterclaims, Cross-Claims, Impleader), Class Action
7. Pretrial Procedure and Discovery: Mandatory Disclosures, Discovery, Enforcement, Case Management, Adjudication Without Trial
8. Trial Procedure: Jury Trial, Trial by the Court, Consolidation, JMOL, Judgment, Amend, New Trial
9. Post-Trial Procedure: Alterations, Appeals, Full Faith & Credit, Claim Preclusion, Issue Preclusion
109
What is remittitur?
Defendant's request to reduct jury award of excessive damages
110
What happens in the event of remittitur?
Plaintiff must be offered a choice between:
1) Reduced damages OR
2) New trial on damages
111
What is additur?
Plaintiff's request to increase jury award of inadequate damages
112
What happens in the event of additur?
A party may move for a new trial on the basis that the fact finder awarded an inadequate amount of damages. If a federal court rules that the amount was inadequate, it may order a new trial but may NOT impose an increase in the amount of damages.
113
When must the court clerk enter a default judgment?
1) The plaintiff's claim is for a sum certain or a sum that can be made certain by calculation;
2) The plaintiff's request for default judgment includes an affidavit establishing the amount due;
3) The defendant failed to appear; AND
4) The defendant is not legally incompetent or a minor
114
When is there a right to jury trial in a civil case?
1) Legal claim = seeks monetary remedy to compensate for loss; AND
2) > $20 in controversy
115
When is there NOT a right to jury trial in a civil case?
1) Equitable claim = seeks nonmonetary remedy (e.g., injunction, specific performance) since legal remedy is inadequate; OR
2) < $20 in controversy
116
What is the two-dismissal rule?
A voluntary dismissal is with prejudice when the plaintiff:
1) Voluntarily dismissed an action in federal or state court without a court order; AND
2) Filed a notice of voluntary dismissal in a second action on the same claim in federal court
117
Where is venue proper when there is removal?
The federal district where state action was pending
118
Where is venue proper when there is a foreign resident?
In any judicial district
119
Where is venue proper when there is a federal official sued in their official capacity or under color of legal authority?
1) Where the defendant resides;
2) Where substantial events occurred or property is located; OR
3) Where plaintiff resides if no real property is involved in suit
120
Where is venue proper when there is a foreign government?
1) Where substantial events occurred or property is located; OR
2) In federal district court of Washington, D.C.
121
Where is venue proper when there is a multipary or multiforum litigation?
1) Where defendant resides; OR
2) Where a substantial part of the accident occurred
122
Where is venue proper when there is a claim arising under the Federal Tort Claims Act?
1) Where the plaintiff resides; OR
2) Where the act or omission occurred
123
What is the standard of review for legal issues?
De novo
124
What is the standard of review for fact issues?
- Bench trial = clear error
- Jury trial = substantial evidence
125
What is the standard of review for discretionary rulings?
Abuse of discretion
126
What are the requirements for statutory interpleader?
1) SMJ = AIC of at least $500 and minimal diversity
2) PJ = exists over any claimant who is served with process anywhere within the US
3) Venue = proper in any judicial district where any claimant resides
4) Deposit = requires the stakeholder to deposit the property at issue with the court OR post a bond in an amount determined by the court
