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civ pro Flashcards

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1
Q

Venue

A

deals with if that particular court can hear the case but also convenience

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2
Q

Original Jurisdiction

A

where you can file the case

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3
Q

PJ

A

Looking at the people
Court has to determine if they have proper to “hale” a person to ct: force def to appear( no constitutional limit to hale someone to court)
Due process: does distant def have to come to ct (deny them life liberty ect)
Waiveable: Look @ force def: P chooses forum ( no force in issue) Def may waive PJ if they appear to defend case w/o appearing specialty

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4
Q

Specific Juris

A

def contacts w state is what lead to suit (few contacts would be PJ)
For activities/ causes of action in state

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5
Q

In personam: judgement against person

A

Look @ ties to forum state
Citizens of state: auto subject to PJ even if not present in state
Non citizens: tagged in state w service of process

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6
Q

minimum contacts

A

look to see if they has contact in state: even if def cant be served in state/ no consent: state can still take juris if def has sufficient contacts( due process) * International shoe case) look at corporations presence

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7
Q

purposeful availment

A

have to go there on your own free will, courts power of you: person has to come there - situation has to arise due to them being there

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8
Q

In rem: PJ over prop

A

Title
Adverse possess.
Mortgage foreclosure
Property is in forum state & dispute about property ownership

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9
Q

quasi in rem

A

def owns prop & attached
Case doesn’t involve property but juris. Over prop.

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10
Q

PJ checklist

A

Constit. Auth to assert (must not violate due process)
Stat. auth (must be citizen in state that juris.)
P must create adeq. Process to serve def
P must prop. Serve def( make sure service is adeq. Def residence- serve to someone of suitable age
Minimum contact ( person has to have some contact in that state)
Purposeful availment (see what persons purpose for coming to the state: look to see if the person was there for court)( look at how a company advertises or posts things/ business that they do in another state- see what type of benefit they receive from the other state that would allow the court to have power over them)

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11
Q

long arm stat.

A

states typically enact statutes permit P to serve out of state def.- may say extent of allowed by Constitution OR give criteria to restrict state courts PF Or they may go too far

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12
Q

challenge PJ

A

Service in state generally satisfies PJ
Special appearances: def can ask the court to permit a special appear: for sole purpose of challenging the courts PJ: P can’t serve def while in state if that: def may only object to JR: raising another issue could subject to service the courts PJ
Collateral Challenges: since PJ can be waived: def participated in case that will be waive any objection & can’t challenge later : def fails to appear & default judgment is entered: def can collateral attack by saying lack of PJ

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13
Q

diversity

A

parties are from dif states: let them go to 2 fed ct ( not a requirement)
Subject matter jur deals with subject & diversity
Constitution: citizen of dif state
Statute: complete diversity & amount controversy: minimal diversity is enough in some cases (multiparty class action)
25% of fed civil
cases are diversity: parties can’t create diversity by assigning cause of action or right to sue: may defeat diversity if assignee not diverse w def.
Basis for SMJ but looks at residence of parties

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14
Q

domicile

A

Citizenship: intent to stay in that state & residence ( one state only)

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15
Q

fed ct auth.

A

constitution ( fed subject matter) & fed statute auth. ( diversity)

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16
Q

Fed rule 1

A

Rules that govern the U.S. District Ct to secure the just, speedy and inexpensive determination of every action
Cases should be run to reach just results and not decided on legal technicalities

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17
Q

rule 2

A

here is one form of action- civil action
Contracts with CL as it is highly technical language to properly plead types of actions
Communicates merger of law & equity in the fed. Ct system
Can issue injunctions and deals w damage

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18
Q

complaint must allege what 2 things

A

SMJ & PJ

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19
Q

diveristy

A

Complete: 2 dif people living in dif states: look at domicile (physical presence & intent to remain indefinitely or foreseeable future) AND
Amount controversy: must exceed $75,000
( look to see if federal issue is embedded in the state law- will have to go through the 4 part test to see if it has federal ?) THEN see if it is a substantial ?: can’t be to the parties( its from the federal perspective)
OR

Federal ?: constitution, treaty, or statute ect

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20
Q

domicile for business/ Corp.

A

Business Diversity: 1 or more person treated as citizen ( figured by domicile)
Exception: Incorporation: dealing with state in which they are inc. and state that constitutes principal place of business: can be citizens of 2 states if these are dif & typically are
Corporations: do citizenship test- max 2 states
For business look at incorporation & principle place of business (nerve center, where they hold their meetings)
When 2 people want to bring a claim in same transaction: still have to be diverse
Ex: PA & PC v. DB

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21
Q

Nerve center test

A

look @ businesses and all operations in 1 state & headquarters is on the border in another state : principal place of business

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22
Q

aggregate amounts

A

Single P & D
P can aggregate claims and add up amounts
No aggregation when multiple def: have to show $75,000 against 1 def

Can aggregate claim even though incidents are seperate- people & parties need to remain the same (no specific length of time) look @ facts & circumstances

Can count punitive damages for aggregate claim: not available for breach of K or certain tort

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23
Q

minimal diversity

A

can support fed SMJ amount in controversy over $5 million
Court has to use discretion to deny juris & must deny juris. Dep on specifics of class action

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23
Q

minimal diversity

A

can support fed SMJ amount in controversy over $5 million
Court has to use discretion to deny juris & must deny juris. Dep on specifics of class action

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24
Q

fed ? applies if

A

P claim arises out of fed statute, Constitution or treaty: copyright allows you to sue for infringement in fed. Statute, Fed. Debt ACT permits P’s to sue when business use improper debt collection pract., city taken P property w/o paying comp.
OR
Claim arises out of state law: necessary component of claim is a fed. issue
Ex: fed tax laws: incorporation: state creates la for the tax law/ cheating on taxes

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25
Q

well pleaded complaint

A

-Lousiville v. Motley (assess fed ? raised based on complaint)
- fed ? must arise from this
Answers or counter claims don’t count

Artful Pleading:
Add fed ? to complaint that isn’t really there
Declaratory Judgment action: if D met this rule then fed ? is there

Limits on embedded Fed. Issues
Claim arises out of fed law: fed. Ct under fed ?

Infringement/ Patent is exclusively fed. Law

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26
Q

fed ? juris.

A

Fed ?: arising under certain fed law OR necessary component: state law claim

Arising under: Fed constitution
OR
Nec. Component: Asserts but not federal: will look @ some aspect of fed. Law
Actually disputed
Necessarily raised
Substantial & taking jurisdiction doesn’t upset fed/state balance

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27
Q

removal juris.

A

File in fed ct. & move from state ct. To fed. Ct as long as FSMJ exists
Exception:1. diversity is only basis for FSMJ & def is citizen 2. All def don’t agree to remove

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28
Q

removal procedure

A

if its state law & no diversity byt amended complain adds fed claim
D will get 30 days from service of amended complaint to remove

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29
Q

1446 a : notice of removal

A

file in district and division where action is pending a notice of removal signed to rule 11 & contain a short and plain statement of the grounds for removal: cope all of process, pleadings & orders

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30
Q

1441 a: civil action brought in a state court:

A

civil action brought in a state court: have original FSMJ may be removed by def (action is pending)
Exception 1441(b): def can’t remove if: diversity is only basis for FSMJ & def is citizen of state in which case was brought: diversity is the only establishment: have to make sure they are not citizen of foreign state

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31
Q

1446 c 30 day deadline

A

Within 30 days after the receipt the def through service of initial pleasing set forth claim for relief OR receipt of a copy on amended pleading order - saying the case become removable
Exception: case may not be removed on bases of juris. Conferred by sect 1332: more than 1 year after start of action

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32
Q

1447 c: remand motion

A

Remand the case basis on defect other than SMJ must be within 30 days after filing notice of removal
If before that final judgment district ct lacks SMJ: case will be remanded
Order remanded case may require payment by defendants

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33
Q

1446 d : no appeal of remand

A

Order remanding case to state court from which it was removed is not reviewable on appeal
Exception: civil rights cases

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34
Q

Non removable claims

A

a claim filed in state court arising under laws of US are joined with claims that can’t be heard in fed. Ct
Def may remove but fed ct can return the non-removeable claims to state ct

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35
Q

forum choice

A

P choses form: state or fed
Exceptions: 1. Pure state law issues 2. Exclusive fed. Jurisd

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36
Q

specific juris.

A

sue def in state where its not their home: show there is enough contact in state
Minimum contacts: D’s actions in state
Purposeful availment: by conducting activities in forum state ( intl shoe case)
See if contacts arise out of that juris.
( look @ fairness facts for def: look @ purposeful avail & minimum)
( pennoyer case- serve person before they left the state)

37
Q

Challenge PJ if def doesn’t specifically object then they waive PJ:

A

need to specially appear: then they can’t be served @ that time- if def fails to appear- default judgment will be given

38
Q

General Juris:

A

can sue def in state about anything: must be def home state

39
Q

Specific: juris

A

foreseeability ones product would end up in a state &/but that one would be
One would be haled into court there ( b/c of their contacts)
Served def while in state

40
Q

stream of commerce: specific juris

A

Uncertain test for PJ
Establish purposeful contacts require specific content to make product “specifically in that state”

41
Q

SJ: libel

A

Arises out of contacts w/ state
Publication sold in state & defamatory statement based on research in state
Ex: newspapers dols in state & research is done in that state

42
Q

Gen. Juris

A

if case doesn’t arise out of def contact w/ state
Must be individuals domicile( home state)(def)

43
Q

Juris: Based on Land

A

In Rem: property in forum state ( enough to establish minimum contacts)

44
Q

corp

A

isn’t limited to domicile

45
Q

quasi in rem

A

Take juris not necessarily including property b/c it has been attached & damages come from value of that property (causes/ provides contact w/ state)
w/o PJ: ct. May only issue a remedy w/ respect to the land

46
Q

rule 3

A

file complaint in Ct: have to get someone to serve papers for you can’t file it yourself

47
Q

rule 4

A

Legal auth: to serve process in fed. Ct
Must leave summons @ someones house w suitable age & must reside there
EX: if they are on a business trip & served not ok b/c not the common abode , also housekeeper isn’t okay

48
Q

venue : PJ or substantial event

A

Cts that should be hearing this case
Check state law to see what’s the appropriate venue
CA venue: person has to live or do business in that county

49
Q

venue based on claim

A

Look @ events give rise to claim location or where prop. Located
3 things to look @
Products liable: where manufacture & injury occured
K: made & breach
Tresspass: prop. Location ( venue doesn’t exists where convenient for

50
Q

multiple proper venue

A

Venue will be appropriated in more than 1 district
Residence path will often cover multiple possible fed. Ct. where there are corp. Def

51
Q

catchall provision

A

Alt. if residency path nor claim occurrence path produce property venue
Rare but can occur where: events took place overseas & def don’t reside in the same US state

52
Q

improper venue

A

Waivable: if P files in ct. w/o venue & D fails to time move to dismiss: issue is waived
28 USC 1406: gives FDC authority to transfer to another court with prop. Venue OR dismiss the case if statute of limit has run out case maybe dismissed or transferred to another court

53
Q

notice

A

provides service: make sure parties of case: general aximum
Publishing in newspaper is good enough notice ???

54
Q

private

A

def seeks to transfer from a ct with a prop. Venue: P should get to choose forum unless balance of convenience weighs strongly

55
Q

public

A

cts familiar w/ governing law- relative congestion of the 2 cts effecting time resolution- local interests in deciding local controversies

56
Q

balance & trasnfer

A

overwhelm weight goes to Ps choice of forum: everything must strongly weigh against transfer from a place w prop. Venue

Transfer: ct may transfer a case for venue reasons only to a ct: within the same system: state to cts or fed to another fed.
SMJ & PJ exits

57
Q

forum non conveniens

A

CL allow ct to dismiss a case even w SMJ PJ & venue
Appropriate when there is effective convenient forum outside of fed ct. System: foreign country & balance between private & public interest
Court will consider dismissing

Test: for Forum non conveniens (I don’t want to hear this case on fairness factors alone)
look to see if alternative forum is available
What are the private & public interests

58
Q

Quasi Heightened Plausibility Pleading

A

Rejects idea that P could simply allege a conclusory statement that each claim was met
P must show that not only that the claim was conceivable
Can’t simply plead language of tort: must

59
Q

pleading

A

Identify disputed issues
Has to plausibly plead can’t just state the tort ect

60
Q

complaint

A

Has damages & injunctive orders
Identify basis for SMJ (have to allege)
P files complaint : shows how def violated P’s legal rights: establish def liability
D files an answer by admitting or denying the allegations

61
Q

steps to a decision

A

Motion to dismiss: all facts in complaint are true & asl only if they state a claim ( saying complaint failed to allege a claim)
Summary judgment: if there are false allegations: no dispute on the facts

62
Q

default judgment

A

Set aside an entry of default ( MCQ)
KNOW ENTRY OF DEFAULT & DEFAULT JUDGMENT
DAMAGES SUPPORTED BY EVIDENCE

63
Q

contest complaint

A

Def Need to contest the facts alleged

64
Q

completion of trial (waiver)

A

After trial pleadings are impliedly amended to conform to evidence
Failure to join a needed party & state a claim: aren’t waived if not included in 1st pleading
Have to be asserted before closing of trial

65
Q

Rule 5

A

Serving things other than the complaint

66
Q

Rule 6

A

If you use the mail then the party has 3 extra days to respond to the service
Look @ the local rules & time: abide by that for the complaint
Waiver of service: is included with the mail of complaint- if def exercises it then the service is then okay( they also get extra time) : if they don’t waive then you must serve them beyond the mailing; def then has to pay for the service
HE TENDS NOT TO TEST THIS RULE

67
Q

Rule 7

A

Kinds of pleadings allowed: limiting # of pleadings to a complaint & an answer
Response to the old way of pleading

68
Q

Rule 8

A

Look at ways that you have to respond; if you don’t respond then you will be treated as you have admitted what was alleged
Counterclaim doesn’t need to include an allegation of complaint bc P already did allegation
Entitle P to relief
Have to go through complaint & admit or deny every # paragraphs in the complaint & assert defenses: defendant does this : some paragraphs may have multiple allegations in them - def can say summary judgment (P or D can move for this)
Can seek discovery

69
Q

Affirmative defenses

A

Statute of limitations
Claim has been released
Issue preclusion or claim preclusion

70
Q

rule 9: particular plead

A

If def is under age or incompetent then the P doesn’t need to allege that def isn’t able to defend themselves: it is up to the def to do so
Plead with all details of the incident
Complaint - look at jurisd & venue: make sure to identify the parties
9(b): Fraud: need to include particularity when the parties dealt with each other over time
9(g): special damages

71
Q

Rule 10

A

Check with your law firm and the local rules on the case

72
Q

Rule 11

A

Have to be truthful in pleading otherwise you will be sanctioned to court
Have to reasonably/ adequately investigate the allegations in the complaint : look @ facts & the law ( failure to do so is a sanction)
Bad faith pleading violates this rule
Must have a good faith argument
Continuing duty: doesn’t apply to oral arguments – advocate for position asserted in pleading if you see something wrong in complaint must bring it to court’s attention
Don’t serve court, serve it to the party before you go to court w it (21 days.. To fix problem before going to ct)
Filing a pleading for an improper allegation: this violates the rule

73
Q

rule 12: motion to dismiss

A

Only get one motion to dismiss: this is waivable – PJ or service of process or venue
not waivable: lack of SMJ or failure to state a claim, failure to join a party
Def can: accept every factual allegation in complaint is true & claim P is not entitled to relief
Motions don’t contest the facts. Take the details to be true : def will have to say lacks PJ, venue or something. Say details don’t amount to a claim
Motion for a more definite statement
Complaint was bad & def can’t figure out how to respond (rare)
Try to just motion to deny this allegation b/c you don’t understand

74
Q

Rule 20

A

Common ? of law or fact then you can bring the def in: defs have to be the same thing to join them together
Doesn’t mean there has to be only 1 trial: trials can be separated and just 1 pretrial

75
Q

Amend the pleading (MCQ)

A

When def moves to dismiss & court agrees
1. Within 21 days of serving : from service, responsive pleading, service of rule 12 motion
2. If a response pleading is needed from original pleading: serve 21 days after
Responsive pleadings: counterclaim. Complaint, 3rd party claims ect
Also a plaintiff is required to answer but can move to strike an affirmative defense (rule 12)
3. Def files motion to dismiss: P can amend the complaint in 21 days
If you amend w/o leave: you only get 1 free amendment after that you have to ask court for permission
Only one “without leave” amendment
Counterclaims: def gives a counterclaim then a plaintiff needs to respond to this

76
Q

Amend w Leave of Court

A

Undue prejudice to opposing party
Any amendment by 1 party makes it prejudice to the other side
Can’t prepare for trial given time left
Once trial has happened: the pleadings are automatically amended to conform to the evidence at trial – P has to satisfy
Liberally granted
Look @ undue prejudice (prejudice that isn’t fair to put on the other party) to deny leave to amend

77
Q

Leave to Amend & Relation Back ( essays - remember 2 step process)

A

Original complaint was filed before statute of limitations ran out
P has to amend after SOL runs out: new claim barred by new filing or new party who couldn’t be sued
Claims have to arise out of same conduct in the pleading: have to look at notice b/c def will have to be given notice so they won’t get the new date ( see if original complaint gives notice to the additional claim)

Court has to grant leave to amend
If it wil then will the time barred claim relate back to the original filing date or will it allow for the amended filing date

78
Q

new parties

A

New party didn’t get served w the original complaint : notice is then an issue
Focus on whether the def SHOULD have knows that it would be sued in absent mistake
Rule: 1. New party should have known about mistake 2. That it would’ve been sue BUT FOR a mistake

79
Q

Relation Back

A

Had the notice of the complaint & knew that they would have been sued BUT FOR a mistake
Claims: as long as the newly alleged claim is sufficiently related to the circumstances giving rise

80
Q

joinder

A
81
Q

joinder

A
82
Q

compulsory counterclaim( memorixe this & exceptions)

A

If a jurisdiction lacks: if fed ? is in 1 claim and the other one doesn’t & doesn’t have diversity
Supplemental jurisd: allows fed. SMJ over claims rising from the same transaction w/o independent basis for FSMJ

83
Q

comp. counterclaim exceptions

A

another pending suit, jurisd. Based on property attachment rather than PJ, claim arises after the initial case is filed, possibly if a case is settled before def. Files any pleading

84
Q

permissive counterclaim

A

any claim not arising from the same transaction as the initial claim can be filed as a counterclaim: may have an indep. Basis for FJ ( diversity or fed ?)

85
Q

counter claim

A

multiple Ps or Ds : they can bring claims against each other
All are permissive not compulsory
May be filed if it arises out of the transaction
If the claim relates to any property
Is a claim against another party on the same side of the V. like 2 defs.
Involve alternative liability to a P: as well as a direct claim

86
Q

same transaction standard

A

Look to see if there are issues of fact
Is there a logical relationship between the 2 actions
( quote words in the fact pattern)

87
Q

Intervention

A

As of right: if an outside party meets the requirements then the court is required to let them in: fed. Statute provides an unconditional right to intervene OR claims an interest relation to the transaction & disposing of the action as a practical matter may impair the movant’s ability to protects its interests BUT not if existing parties adequately already represent that interest (quote facts in fact pattern for step 3)
1. Claim an interest relating to the transaction
2. Situated in disposing the action that impede the movants ability to protect the interest
3. But if not existing parties adequately represent the interest
Permissive: conditional right by fed. Statute, intervenor has a claim or defense that shares main action: does letting this in help the case or unduly delay it

88
Q

partial intervention

A

(if it denies intervention then it also can do this)(add this to an intervention analysis)
Limited only to file briefs on motions raise by other parties; but can’t file their own motion
Court may prohibit intervention but allow a non-party to participate as amicus curiae aka friend of the court: may filebriefs on issues before the court but aren’t parties impacted by judgment

89
Q

alternative to intervention

A

Amicus Curiae: can contribute/ give oral argument to the court

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