Civ Pro Flashcards
Personal jurisdiction
1. Authorized by statute A. Present and served in state B. Domiciled C. Citizen Abroad D. Consents to jdx E. Long arm statute (act in state)
2. Constitutional limitations A. Contact a. Minimum contacts b. Purposeful availment c. Foreseeable B. Relatedness a. Specific Jdx -Related to defendants contacts b. General jdx -At home
C. Fairness
a. Must not offend traditional notions of fair play and substantial justice
- convenience
- forum interest
- judicial efficiency
Diversity jurisdiction
At time suit is commenced
1. Complete diversity + >75,000
2. Alienage jdx
us citizen + foreigner(unless green card)
X no alien v alien jdx
Citizenship of partnerships
State of Each and every partner
Supplemental Jurisdiction
- Common nucleus of operative facts
Limits for Plaintiffs
Erie doctrine
- State substantive law and Federal procedural law
a. Always substantive A. Statutes of limitations B. Tolling SOL C. Choice of law rules D. Elements of claim or defense
b. Otherwise
A. Outcome determinative test
B. Balance of interest test
C. Deter forum shopping
c. Federal common law
Fed exclusive jurisdiction
- Bankruptcy
- Patent and copyright
- US involvement
- Against foreign states
- Postal matters
- Irs cases
- Sec cases
Venue
- Where any D resides if all reside there
- Where substantial part of action took place
- Not 1 or 2 and has PJ over D
Residence for Venue
- People- domicile
- Business- anywhere there is PJ
- Nonresident- anywhere
Transfer of venue
- Convenience of parties- anywhere it could have originally been filed
- Consent
- If original venue is improper
Apply law of transferor court if was proper
If original venue was improper or forum selection clause -> apply transferee law
Removal
Only defendants may remove
- Case could have originally been brought in fed court
- No defendant is a citizen of state where filed (for diversity)
- Dismissal of non diverse party allows removal (within one year of filing)
Removal Procedure
- File notice in federal court
- Send notice to other parties and state court
- Within 30 days of last D’s notice of case’s removability
- All Ds must join removal
Remand procedure
> 30 days after removal (unless for SMJ)
Plaintiff files in Fed court
Service of Process
Within 90 days of complaint
- Personal
- Place of abode with adult living there or agent
- Accordance with rules of service state or forum court
- Waiver
Service of process foreign country
- In accord with international agreement
- Foreign countries law or directed by foreign official
- Personal service or mail, unless prohibited by foreign law
- Method court orders that is not prohibited by international agreement
TRO
- States specific facts of irreparable injury if not granted
- Certifies in writing Efforts made to notify other party or why no notice is needed
- Provides security to pay for damages if unwarranted
Lasts 14 days
May be extended for 14
If more-> preliminary injunction
No right to appeal
Preliminary injunction
- P will suffer irreparable harm if not granted ( key factor)
- Harm to P outweighs harm to D
- P shows likely to be successful on merits
- Public interest favors granting
Immediately appealable
Complaint
- Grounds for fed jurisdiction
- Short statement showing entitled to relief
- Demand for judgment for relief
Plausible not just possible
Motion to Dismiss
- Lack of smj
- Lack of pj
- Improper venue
- Insufficiency of process
- Insufficient service of process
- Failure to state a claim for which relief can be granted
- Failure to join indispensable party
2-5 waivable unless filed in first response
6,7 any time before trial
1 anytime even on appeal
If raises issues outside pleadings->MSJ not Mtd
Answer
21 days after service (60 if waived)
14 days after pre answer motion denied
Counterclaim
- Compulsory - same transaction or occurrence. Barred if not raised
- Permissive- not same t or o - can bring if meets jdx requirement
Amended pleadings
- Once within 21 days of service or 21 days after service of responsive pleading
- With leave of court may amend again
- Relates back if same t or o as original pleading
- Relates back if D changed and D2 knew of action
Rule 11 certification
lawyer certifies all filings:
- Not for improper purpose
- Legal contentions warranted by law or nonfrivolous argument
- Contentions have or are likely to have evidentiary support
- Denials of factual contentions are warranted on the evidence or based on lack of info
Rule 11 sanctions
- Court may order on its own - party must show cause why not imposed
- Opponent may serve motion for sanctions
- 21 days to withdraw or correct
- If not corrected may file motion for sanctions
- Nonmonetary directives or monetary penalties
Compulsory joinder(indispensible parties)
- Should absentee be joined?
A. No complete relief to other parties without
B. Absentee has interest that cant be protected without - Can absentee be joined?
A. Pj
B. Will it destroy diversity - If cant can action proceed without?
A. Prejudice to absentee or other parties
B. Can prejudice be avoided
C. Adequacy of judgment without absentee
D. Adequate remedy to parties in another forum if dismissed
Permissive joinder
- Some claim is made by each plaintiff and against each defendant relating to same T or O
- Question of fact or law common to all parties
Jdx must apply (but ps can aggregate for 75k)
Joinder of claims
At least one claim arises from a transaction in which all were involved
Class action
- Class is so numerous joinder of all is impracticable
- Questions of law or fact common to Class
- Named parties’ interests are typical of the class
- Named parties adequately represent interests of the class
- One of the following is present
A. Separate actions create risk of inconsistent results or impair interests of unnamed parties
B. Injunctive or declaratory relief is appropriate to class as whole
C. Common questions of law or fact predominate and a class action is superior to alternate methods of adjudication
Initial disclosured
A. Names addresses and numbers of people with discoverable info disclosing party may use to support claims or defenses
B. Copies or descriptions of evidence
C. Computation of claimed damages and basis
D. Copy of insurance info
14 days after discovery conference
Pretrial disclosure
30 days before trial
- Planned witnesses
- Possible witnesses
- Deposition witnesses
- Documents and exhibits
Impeachment only evidence need not be disclosed
Trial prep materials
Anticipation of litigation-> privileged
Substantial need and undue hardship may overcome
Appeal
30 days from time of judgment
Unless excusable neglect
Claim preclusion
- Both claims brought by same plaintiff against same defendant
- Case 1 ended in valid judgment on the merits
- Case one and two asserted same claim
Issue preclusion
- Final judgment in C1
- Same parties or others
- Same issue actual litigated
- Issue essential to judgment
28 days
Time after Judgment to file motion for new trial
RJNOV
21 Days
Time after complaint to answer
Time to amend pleading once
Time to withdraw pleading after rule 11 served
14 days
Expiration of tro
Time to file jury demand after last pleading directed to jury
Time to appeal class action certification
30 days
Appeals
Removal
Remand
Time to return request to waive servicd
JMOL
- Jusgment as matter of law( directed berdict)
- Reasonable people cod not disagree on result
- After other side heard at trial
Motion for new trial
- Any non harmless error
- <28 days after verdict
A. Erroneous jury outcome
B. New evidence arisen
C. Misconduct of juror, party, lawyer
D. Judgment against weight of evidence
E. Inadequate or excessive damages
