civ pro Flashcards
federal question jxn
exists when the claim arises under federal law, us constitution, or us treaty
P must be enforcing a federal right and must be present on the face of a well plead complaint
raising defense under fed law is not enough
diversity jxn
requires complete diversity at time action is commenced and controversy exceeding $75k
complete diversity citizenship requires
no p can be from same state as any D
citizenship is determined by domicile when action is commenced
- natural person: residence and subj intent to make the state their permanent home
- corp: dual citizenship at principal place of business and any state of incorporation
- unincorp association: domiciled in state of every partner/member/owner
- execut/personal rep: citizenship is that of decedent or person being represented
> $75k controversy diversity jxn
based on damages alleged in good faith in complaint unless it is legally certain that P cannot recover amount
injunctive relief = the amount of the benefit to P or cost of compliance for D
may aggregate claims against one D or against multiple D if jointly and severally liable
supplemental jxn
allows party to bring state claim in federal court that does not meet requirements of SMJ where such additional claim arises from a common nucleus of operative fact (same t/o) as the other claim the court has SMJ over
limitations:
- cannot be used to overcome lack of diversity
- cannot be asserted if would violate complete diversity
- does not apply to claims by OG P against third party D
court may decline supp jxn when
- claim raises novel or complex issue of state law
- claim sub predominates over other claims the court has SMJ over
- court dismissed all claims that had federal SMJ or
- exceptional circumstances
removal
D may remove case to fed court in the district court where the state court case was filed if
- fed court has SMJ
- all D agree
- No D is resident of forum state (if based on diversity jxn) AND
- removal is sought within 30 days of service of summons or receiving initial pleading justifying removal
P cannot remove to fed court
personal jurisdiction requires
must have PJ over party based on traditional bases and long-arm jxn
traditional basis of PJ
domicile, presence in state when served, consent or waiver (appearing without objection)
all comport with DP requirements
long arm jxn non-resident
state must have long-arm statute and comply with constitutional DP requirements
D must have sufficient minimum contacts with the forum state so as to not offend traditional notions of fair play and sub justice
minimum contacts PJ
contacts + relatedness
either:
1. gen jxn: contacts substantial and of such nature D is essentially at home (individuals = domicile or corp = where incorporated or PPB) or
2. specific: connection b/t forum state and underlying controversy and lawsuit arises from contact w/ forum state
service of process timing
summons and complaint must be served on D within 90 days after filed with court
remedy for improper service: dismiss action without prejudice or order that service be made within specific time period
service of process - method of service and who can receive
Process server - must be 18+ AND not a party to action
method: consistent with DP - reasonably calculated to make parties aware of action and give them opportunity to object.
individual - may be served personally, via someone of suitable age and discretion at individual current dwelling, via an agent, or in accordance with state law of forum state or where service is made
corporation - may be served in accordance with state law of forum state or where service is made or to an officer or managing/general/authorized agent
foreign corp: in accordance w/ foreign country law, as directed by foreign country after inquiry, by mail w/ signed receipt if address is known, or any means authorized by federal court
proper venue
any district where
- any D resides (if all D reside in forum state)
- substantial portion of claim occurred
- substantial portion of property is located or
- if none of above, then where any D is subject to court PJ
*determined at the time action is filed
transfer of venue
if venue was proper:
may transfer if needed for convenience of witness or interest or justice and the case could have been initially brought in the receiving court
if venue was improper:
the court must either dismiss the case or transfer to a proper court if interest of justice require
*forum selection clause are generally enforceable
erie doctrine
applies when fed case is brought under diversity jxn
federal courts apply substantive law of forum state but federal procedure law
procedure = civil procedure, statute of limitations, burden of proof, rebuttable presumptions
substantive = choice of law, SOF, irrebuttable presumptions, SOL that condition a substantive right or have a borrowing statute
preliminary injunction
maintains status quo until action is heard
may be issued only
- upon notice to adverse party and
- moving party gives security
4-prong test for issuance:
- success on merits
- threat of irreparable harm
- potential harm outweighs any harm to non-moving party and
- is in public interest
temporary restraining order
an emergency remedy used to maintain status quo pending outcome of preliminary injunction application. to be issued, movant must allege immediate and irreparable harm, and court will analyze the same factors as prelim injunction
ex parte TRO - moving party must
- provide specific facts in sworn affidavit showing immediate and irreparable injury, loss, or that damage will result before an adverse party can be heard
- certify in writing any efforts made to give notice to adverse party and why notice should not be required and
- give security in amount court deems proper (unless US, its officers, or agent)
automatically expires after 14 days unless the court sets shorter time frame, the court extends for good cause, or parties consent
**cannot be issued more than 28 days without becoming prelim injunction
amendment of pleading as matter of right
allowed to amend once as matter of course
• Within 21 days after service or
• within 21 days of service of responsive pleadings or pre-answer motion (rule 12)
• Opposition party has 14 days, or time remaining on 21-day deadline (whichever is longer) to respond to amended pleadings
amendment of pleading without right
allowed with opposing party written consent or with leave of court upon motion (freely granted when justice requires)
waived defenses
if not included in first response, these defenses are waived
lack of PJ, improper venue, insufficient process, insufficient service of process
relation back doctrine
when complaint is amended to add
new claim –> related back to date of OG filing if arises out of same t/o as OG pleading allegations
new D –> relates back if
- same t/o
- new party received notice of OG action within 90 days of filing and
- new party knew or should have known that action would have been brought against them but for a mistake in party identity
counterclaims
permissive - counterclaims against opposing party that are not compulsory
compulsory - claim that arises out of same t/o and does not require adding another party out of court’s jxn (must be stated in party’s pleading or its barred in future litigation)
rule 11 - representations to the court
all papers served in litigation must be signed by an atty of record or by the party if unrepresented. when presenting the papers to court, the party certifies
- it is not being presented for any improper purpose
- the legal contentions are warranted and non-firvolous
- the factual contentions have evidentiary support or likely will after discover and
- denials of factual contentions are warranted or reasonably based on lack of information
rule 11 does not apply to discovery or discovery motions
rule 11 sanctions imposed
the court may issue sanctions by motion or on its own for failure to comply with rule 11. nature of sanctions are within court discretion and includes non-monetary directives, pay penalty, or pay reasonably atty fee or expenses resulting from violation
liability: generally, law firm is jointly responsible for a violation by partner, associate, or employee
monetary sanctions cannot be issued against client for an unwarranted claim, defense, legal contention made by atty
procedure for filing rule 11 sanction
a party cannot file rule 11 sanction motion without first
- serving the motion on the offending party and
- giving opponent 21 days to withdraw or correct the paper/pleading
permissive joinder of parties
multiple plaintiffs or defendants may be joined in one action if
- joint and several relief is asserted by them or the claim arises out of same t/o
- common question of law or fact and
- SMJ is present for each claim
logical relationship test: all logically related events for legal action are within the meaning of same t/o
mandatory joinder
party must be joined if
- the party is necessary to the action and
- joinder is feasible
a party is necessary if
- court cannot grant complete relief without the party
- the absent party claims an interest in the action that would be impaired or impeded or
- the party’s absence creates a substantial risk of multiple liability or inconsistent obligations
joinder is feasible if
- joinder will not remove SMJ and
- court has PJ over party
if joinder is not feasible, the court will consider factors to decide whether or not to dismiss the action: prejudice, ability to lessen prejudice, ability to issue adequate judgment, and if plaintiff would have remedy if the case is dismissed
intervention as of right
a court must permit non-party to intervene in action if it demonstrates that:
interest in subject matter of the action and protection of this interest is not adequately represented by existing parties in the action or
statutory right of intervention
**joinder in diversity requires independent SMJ
permissive intervention
court may allow non-party to intervene when the non-party
either (a) has a claim or defense that shares common question of law or fact with the main action or (b) is given conditional right to intervene by fed statute
**court must consider whether intervention will unduly delay or prejudice adjudication of the OG parties rights
impleader
D may bring a third-party into action only if
third-party is or may be liable to D for all or part of the claim against D
**claims merely arising out of the same t/o are insufficient unless derivative liability exists - i.e., indemnity or contribution
court must have PJ over party and SMJ (gen will have supp jxn)
class action requirements
a person is allowed to sue on behalf of a class when there is
- numerosity - class is so numerous that joinder is impractical
- commonality - questions of law or fact are common to the class
- typicality - the claims/defenses of representative parties are typical of the class AND
- adequacy of representation - the representative parties, incl. clounsel, will fairly and adequately protect interests of the class
class action certification
if the requirements are met, the class will be certified if
- inconsistent/dispositive adjudications - separate actions would create risk of inconsistent adjudications or harm the interest of absent class members
- declaratory injunctive relief - the party opposing the class has acted/refused to act on grounds that apply generally to the class so that the grounds for declaratory/injunctive relief are appropriate to the whole class or
- predominance and superiority - common questions of law or fact are predominant and a class action is superior to other methods
discoverable information
a party may obtain all non-privilege information that is relevant to any party’s claim or defense AND proportional to the needs of the case
the info does not have to be admissible into evidence to be discoverable
once a person reasonably anticipates litigation, that person has duty to preserve all relevant evidence
deposition rules
a party is permitted up to 10 depositions of any person/party, so long as deposition is
- limited to 1 day of no more than 7 hours AND
- proper notice is given (reasonable written notice)
subpoena is not required to depose any party in action
until stipulated otherwise, a party must obtain leave of court to
- take more than 10 depositions
- depose a party again, if already deposed in action or
- seeking deposition prior to the rule 26(f) meet and confer conference
sanctions for failure to preserve ESI (electronically stored info)
the court may sanction party for failure to preserve ESI if
- ESI should have been preserved (reasonably anticipate litigation)
- the party failed to take reasonable steps to preserve and
- ESI cannot be replaced/restored through additional discovery
if satisfied, the court may
- order measures no greater than necessary to cure any prejudice or
- if failure to preserve was intentional: presume lost information was unfavorable, instruct jury that is may presume lost info was unfavorable, dismiss action, or enter default
signing discovery document certifies that it is…
- consistent with FRCP and is not frivolous
- not being presented for improper purpose and
- not unreasonable, unduly burdensome, or unduly expensive
signing disclosure certifies that it is complete and correct at time it is made
sanctions for improperly certifying discovery document
if a person violates the rule without substantial justification, the court must impose an appropriate sanction
rule 26(a) initial disclosures
without request, each party must provide these initial disclosures to opposing parties within 14-days after 26(f) meet and confer conference:
- contact info of people likely to have discoverable information, plus the info they likely possess
- copy or description of all docs, ESI, and tangible items the party may use to support its claims/defenses unless it will be used solely for impeachment
- computation of each category of damages and
- any insurance agreement that may be liable to satisfy judgment in action
if the party fails to provide the info, that party is not allowed to use the info or witness not provided on motion, hearing, or trial unless the failure was substantially justified or harmless
attorney work product doctrine
protects from disclosure all materials prepared by an attorney or his agents in anticipation of or during litigation unless
- substantial need for materials exists and
- substantial equivalent cannot be obtained without undue hardship
privilege log
when a party claims work product protection, it must disclose the existence of the material in sufficient detail to enable other parties to asses the claim of privilege
pretrail conference
the court may order attorneys and pro se parties to appear for pretrial conference to control management and scheduling of case
scheduling order modification
can be modified only for good cause and with judge consent
modification of pretrial conference order
can only be modified to prevent manifest injustice
motion to dismiss standard
requires the court to consider facts in light most favorable to the non-moving party and determine if there is any basis upon which relief can be granted
can be based on SMJ, PJ, venue, process, service of process, failure to state a claim, failure to join necessary party
motion for judgment on pleadings
after defendant answers, either party may move for motion for judgment on pleadings where complaint and answer show one party must win
motion for summary judgment
a court will grant SJ when there is no genuine issue of material fact and movant is entitled to judgment as matter of law
the court views evidence most favorable to non-moving party
can be sought on the entire case or for certain issues (partial SJ)
if MTD presents matters outside of pleadings, the court may treat it as SJ motion
timing: before trial, no later than 30 days after close of discovery
Motion for judgment as matter of law
timing: brought any time before the case is submitted to jury
standard: will be granted if non-moving party has been fully heard on the issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on the issue
the court must draw all reasonable inference in favor of non-moving party
renewal JMOL motion
timing: within 28 days of entry of judgment
standard: can only be renewed if it moved for JMOL before case was submitted for jury and can only be made on the same ground the original JMOL was made on
same standard as JMOL applies
motion for new trial
timing: no later than 28 days after entry of judgment
court may grant new trial for any reason which new trial has been granted previously in fed court. court considers how much weight to give jury verdict and must find some serious error that occurred during trial
grounds for new trial:
error at trial that makes judgment unfair
new evidence surfaced that could not be obtained with due diligence for the OG trial
prejudicial misconduct of a party, attorney, third-party, or juror
verdict was excessive or inadequate
motion for more definite statement
complaint so vague D cannot reasonably prepare response
interrogatories
question to be answered in writing, under oath, limited to 25 questions including subparts (unless court order or stipulation) and must be answered within 30 days
only allowed to parties of the case
answer must be based on records reasonably available
default judgment
a default judgment will have preclusive effect if court had jxn. states vary on preclusive effect, but state court must give JT in fed diversity same effect it would give state court. default JT bars party from asserting compulsory counterclaims that could have been raised in OG action
if D failed to appear –> the clerk may enter default for amount set in affidavit if claim is for certain sum
if D appeared but defaulted –> judge may enter default and additional notice is required
D can set aside DJT if there is good cause and viable defense
claim preclusion (res judicata)
precludes a party from subsequently re-litigating any claim that was or could have been raised
elements:
1. parties are identical or in privity
2. prior judgment was rendered by court of competent jxn
3. final judgment on merits in prior action and
4. same claim was involved in both actions - claim arises out of same t/o
privity = exists when non-party has a legally recognized relationship w/ the OG party and would be bound by judgment against OG party
issue preclusion - collateral estoppel
precludes party from attempting to retry an issue if there has been final judgment on merits by court of competent jxn
elements
- valid and final judgment on merits
- issue is identical to issue decided in prior action
- issue was actually litigated, determined, and essential to prior action and
- party against whom enforcement is sought had full and fair opportunity to litigate the issue in prior action
generally, a non-party to prior action may assert issue preclusion
final judgment rule appeals
a fed appeals court can only hear an appeal from final judgment on the merits unless an exception applies. final judgment is one which ends litigation on the merits (all claims are resolved) and leaves nothing for the court to do but execute judgment
appeal must be filed within 30 days after entry of judgment
exceptions to rule:
- 54(b): immediate appeal is allowed when action has multiple parties or claims, court directs final judgment for some of claims or parties, AND court expressly determines that there is no just reason for delay of appeal
- statutory exception: can immediately appeal orders for injunctions, receiverships, possession of property, liability in admiralty action, and patent infringement orders
- certified appeal: immediate appeal when fed district court judge certifies certain grounds for immediate appeal and the court of appeals agrees to permit the appeal (application must be made within 10 days of order)
- collateral order doctrine: allows immediate appeal if the interlocutory order conclusively determines disputed question, resolves an important issue that is separate from merits of action, and is effectively unreviewable on appeal from final judgment
- writ of mandamus & prohibition: immediate appeal if abuse of authority by trial court - cannot be used to correct ordinary error
- pendent appellate jxn: non-final order reviewable along with another appealable order currently pending before appellate court when a non-appealable decision is inextricably intertwined with an appealable decision or review of non-appealable order is necessary to ensure meaningful review of appealable order
- cert class action: order granting/denying class-action cert may be appealed when petition for permission to appeal is filed within 14 days after entry of order and court of appeals agrees to hear appeal
expert witness disclosure
if intended to call the expert at trial, the opinion of the witness consulted is discoverable
if a witness is consulted in anticipation of litigation, but there is no intention to call them at trial, then the opinion is not discoverable unless there is a showing of exceptional needs
voluntary dismissal
without leave of court:
Allowed before D serves a MSJ or answer
Dismissal is without prejudice provided this is the first time that P has dismissed her case; otherwise, it is dismissed w/ prejudice
with leave of court
Court has discretion to grant on terms and conditions deemed proper; Dismissal is without prejudice unless court states otherwise
Pending counterclaim – if D has filed counterclaim, P cannot voluntarily dismiss without D consent
