All Civ Pro rules Flashcards
FRCP4(k)(1)
Fed jurisdiction is as broad as state long arm statutes
28 USC 1391(b)
Venue - Where defendant resides; substantial events took place; or where court has PJ
28 USC 1404(a)
Venue Transfer: when it is convenient for all parties and in the best interest of justice
28 USC 1332
SMJ: Diversity and amount in controversy
28 USC 1331
SMJ: Federal Question; arises under the laws of the constitution of the U.S.
28 USC 1441
Removal: When fed court has original jurisdiction, can remove if they have SMJ
28 USC 1445
Non-Removable actions:
28 USC 1446
Removal Procedure: 30 days after the amended pleading, cannot diversity remove more than a year filing and the amt in controversy must be met
28 USC 1447
Procedure after removal: motion for remand 30 days after filing of notice of removal
28 USC 1448
Process after removal: preserves defendant right to remand
28 USC 1652
Rules and Decision Act
The laws of the states, except where the Constitution or treaties of the United States or Acts of Congress otherwise provide, shall be regarded as rules of decision in civil actions in the courts of the United States
28 USC 2071(a)
Rules Enabling Act: gives fed courts the right to prescribe rules for conduct of their business
28 USC 2072
Rules Enabling Act: gives fed courts the power to prescribe rules of practice, procedure, and evidence as long as they do not abridge, modify, or enlarge any substantive right
FRCP 8(a)
Pleading:
(1) a short and plain statement of the grounds for the court’s jurisdiction
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
FRCP 4(a)
Summon Requirements: name the court and the parties;
be directed to the defendant; state the name and address of the plaintiff’s attorney; state the time when defendant must appear; notify defendant that a failure to appear and defend will result in a default judgment; be signed by the clerk; and
bear the court’s seal.
FRCP 4(c)
Service: with copy of complaint and summons; anyone older than 18 can serve
Other Service Requirements under FRCP 4
Notice must be received by:
Agent authorized to receive
The person themselves
If the person themselves is not home,
A person of “suitable age/discretion” who resides there at the residence” may accept the notice
State statutes will specify an age, some will not
A corporate defendant can be served by delivering a copy of the complaint and summons to any of these three: a corporate officer, a corporation’s managing or general agent, or any other agent authorized by appointment to receive a summons on the corporation’s behalf
FRCP 8(b)
Answers: Defenses; Admissions and denials; defendant must admit or deny everything, otherwise its admitted
FRCP 8(c)
Affirmative defenses: defendant must assert any affirmative defenses
FRCP 12(a)
Motion to dismiss: must be within 21 days of being served
FRCP 12(b)
Reasons for MtD: lack of SMJ; PJ; Venue; insufficient process; Service of process; failure to state a claim upon which relief can be granted; failure to join a party under Rule 19
FRCP 12(c)
Motion for judgement of pleadings: plaintiff can move for if defendant admits to facts as to satisfy every element of a claim
FRCP 13(a)
Counter Claims: Defendant must assert any counter claims arising out of the same facts
FRCP 13(b)
Counter Claims: any compulsory CC not asserted are waived
FRCP 15(a)
Amended Pleadings: Amend as a right within 21 days; after there must be consent of parties, or if the court decides justice would require amendments
FRCP 15(c)(d)
Amending/supplemental pleading: can add claims after statute of limitations if the claims relate back to the original claim; can also switch out defendant with correct one if the correct party knew it would have been in the suit but for a mistake concerning their proper identity
FRCP 11(a)
Signing Docs: every submission to court must be assigned by an attorney on the case (except in discovery)
FRCP 11(b)
Requirements to not get sanctioned: can’t submit stuff for an improper purpose; the contentions must be warranted by law or by a non-frivolous argument attempting to modify the law; factual contentions must have evidentiary support; the denials of factual contentions are warranted based on information available
FRCP 11(c)
Sanction types: can be imposed on anyone; the other party or court can move for sanctions; court can order a party to show why they did not violate 11(b); can be non-monetary or monetary but based on what is needed to deter conduct
28 USC 1927
Sanctions at any point: for an attorney at any point through litigation for their conduct
FRCP 26(a)(1)(A)
Initial Disclosure: All people likely to have discoverable information; list of documents in the party’s control; calculation of damages; insurance information
FRCP 26(b)(1)
Can discover anything non privileged. Does not have to be admissible
FRCP 26(b)(3)-(4)
Cannot discover things preparted in anticipation of litigation except if they are discoverable under (b)(1) and the party shows it has need for the items and it would be expensive to find a substantial equivalent
FRCP 26(b)(2)(C)
Exceptions to discovery: Unreasonably cumulative, duplicative or there are other easier and cheaper sources; if the other party had ample time to discover the info; or if the discovery is outside the scope of 26(b)(1)
FRCP 26(c)
Protective Orders: can designate things as sensitive, usually attorney’s eyes only
FRCP 30
Depositions: testimony under oath, by agreement usually after document production
FRCP 33
Interrogatories/Contention Interrogatories: limited to 25, responses to factual questions or questions about arguments and legal theories, all under oath (usually throughout discovery or after the close of discovery)
FRCP 34
Requests for Production: all responsive documents or electronically stored information in the parties custody
FRCP 34(b)(1)(A-C)
Discovery Procedure: the request must describe with reasonable particularity the items to be inspected; must specify a reasonable time place and manner for the inspection; specify the form or forms in which the ESI is to be produced
FRCP 34(b)(2)(b)
Responding to each Item: response states what will be permitted, and what will be objected and the grounds for objecting the request and why with specificity
FRCP 35
Mental or Physical Exam: can request an examination when a medical condition is at issue
FRCP 36
Requests for Admission: Can request specific facts to be admitted
FRCP 37
Order to Compel: Rare; court orders a party to produce discovery request
FRCP 37(b)(2)
Penalties for discovery: Penalty of default judgment for not complying with compel order
FRCP 50
Judgment as a matter of Law: After being fully heard at trial; court can resolve the issue if it finds a reasonable jury does not have legally sufficient evidence to find on an issue; Motion can be made any time before the case is submitted to the jury and must specify the judgment sought and the law and facts that entitle movant
FRCP 56(a)
Summary Judgment: after discovery and before trial; when there are no genuine disputes over material fact; Motion includes a statement of the issues to be decided by the court and a statement of Undisputed material facts (if using evidence to support, then must cite to evidence
FRCP 16(e)
Pretrial Conferences; Scheduling; Management
FRCP 26(a)(3)
Pretrial disclosures
FRCP 47
jury selection
FRCP 51
jury instructions
FRCP 48
Jury Deliberation and Verdict
FRCP 42
Consolidation and Separate Trials: When actions involve a common question of law or fact the court can join, consolidate actions, or issues; can also separate issues into different trials
FRCP 16
Reasons for Pretrial Conference: one reason is to facilitate settlement
FRCP 68
Settlement Offer: At least 14 days before the trial, lists out the terms; can be unaccepted but allows for another offer later; offer can be made after liability is determined but at least 14 days before the hearing of extent of liability; if not accepted and lose then have to pay
FRCP 59
Motion for New Trial: judge can grant if jury decision was against clear weight of evidence, or there was a process error like improper jury instructions
FRCP 23(a)
Class actions prerequisites: class is so numerous that joined of all members is impractical; there are common questions of law or fact to the class; claims or defenses of representatives are typical of the class; representatives will fairly protect the interests of the class
FRCP 23(b)
Types of class actions; (1) for separate actions that would create a risk of inconsistent adjudications; (2) when the other party has refused to act on grounds that generally apply to the class so the class is seeking injunctive or declaratory relief for the class as a whole; (3) is the most common typically seeking monetary damages (requires the common question of fact or law to predominate over the other questions by individual members, must be the main issue
28 USC 1367
Supplemental Jurisdiction: Codifies Gibbs, adds exceptions to supp juris, (does not mention plaintiffs joined permissively (Rule 20) or class members joined under rule 23)
