Civ Pro Flashcards
Subject Matter Jurisdiction
Two ways to obtain this;
Diversity
Federal Question
SMJ - Diversity
Case has to be GREATER THAN $75,000; AND
There has to be complete diversity of citizenship i.e. All P’s must be from a different state as all D’s
Greater than 75,000 key points
As long as some possibility it is worth that much
If court finds legal certainty not greater than $75,000; can dismiss
P can add other claims against a single D
If one P has a claim over $75,000, the other P’s can join against single D
How to determine citizenship
For a person:
Where they intend to stay or currently live
For a corporation:
Any state where they are incorporate or they have their PPB
Citizen of a state vs citizen of a foreign nation
Valid diversity
Citizen of two or more foreign countries
No citizenship
SMJ - Federal Question
P’s claim must be based on federal law or federal issue; AND
P’s claim must be plead in the complaint (Well-Pleaded Complaint)
Federal question cannot be a defense
Supplemental Jurisdiction
Federal court is going to add a case or party who originally wouldn’t have had subject matter
When will court allow supplemental jurisdiction?
If under Federal Question - If the new case or party derives from the common nucleus of facts
If under diversity - Has to be from same common nucleus of facts AND new party cannot destroy diversity
If D is the one trying to add the claim or party
Generally allowed
REMEMBER - IN COURTS DISCRETION TO ADD
If P is the one trying to add the claim or party
Generally not allowed
REMEMBER - IN COURTS DISCRETION TO ADD
Personal Jurisdiction - Person is in state
Person is physically present in the state and is served there
If person is domiciled in the state
If person consents to be sued there
Personal Jurisdiction - Person is out of state
First see if there is a long arm statute
Then look to see if minimum contacts
Minimum contacts re: Corporations
Does not offend traditional notions of fair play and justice
Did business purposefully avail itself of the state OR are their activities continuous and systematic with that state
In Rem Jurisdiction
Trying to get jurisdiction over property
Quasi in Rem
Tried to get jurisdiction over a person but couldn’t so going after property in order to satisfy a judgement against a person
Where is Service of Process allowed (90 DAYS)
Only in the limits of that state where the district court sits; or
Anywhere else allowed by state law (long arm)
Personal Service
Done by a non-party over the age of 18
Substitute service of process
Can leave at house as long as left with someone of suitable age
First class mail is okay if D returns an acknowledgment form or waiver form
Can serve to an authorized agent
Any service of process that state law will allow
Service of out of staters
Registered or certified mail
Newspaper is okay if no other reasonable way
Service of a corporation
Can serve any officer or designated agent of the corporation or anyone of officially high status in the company
Removal
Case is in state court but D wants to remove to federal
Removal will be okay when the case could have been in federal court in the first place
ONLY D MAY REMOVE CASE
if multiple D’s, all must consent to removal
Removal Timing
D must file notice of removal within 30 DAYS of getting served with original complaint
If diversity case - Removal cannot happen more than one year after the start of lawsuit; D cannot remove to a state he is a citizen of
Remand
P is trying to remand case back to where they filed if they believe improperly removed
BRING MOTION WITHIN 30 DAYS OF REMOVAL FILING
D has burden to show removal was okay in first place
Venue
What is the proper forum for the case
Three basic places where venue is generally allowed
District where any D resides and or if there are multiple D’s, where all the D’s reside as long as they all reside in that state;
Any district where substantial parts of the event took place;
If 1 or 2 dont apply, any district where D is reachable
Civil Federal Jury Trial
Right to jury trial
Needs to be at least 6 jurors, no requirement of 12 unless parties stipulate to a number
Verdict must be unanimous unless stipulated
Demand for jury trial must be made within 14 days of last pleading
Jury Selection
Two ways to dismiss jurors
For cause:
Any bias or connection to the case or potential bias, juror must dismissed
No limit
Preemptory challenge:
Each party has 3 of these
No real cause
CANNOT BE EXCLUDED BASED ON RACE OR GENDER
Jury Instructions
Judge instructs jury about the law
Party must object to jury instructions before jury retires
Lack of SMJ
Motion can be raised ANYTIME
Lack of PJ
Waived if D did not include in their answer or another 12b motion
Improper Venue
Waived if D did not include in their answer or another 12b motion
Insufficient Service of Process
Waived if D did not include in their answer or another 12b motion
Failure to join a party
Can be raised before or at trial
Failure to state a claim
Even if every fact is true, no recovery is plausible, insufficient facts
Dismissal is WITH PREJUDICE unless court says otherwise
CAN BE RAISE ANYTIME BEFORE OR AT TRIAL
Motion to strike
Before responding to a pleading, WITHIN 21 DAYS OF SERVICE, can make a motion to strike for redundant, immaterial, or scandalous info
Motion for a more definitive statement
Before responding to a pleading, make a motion if its vague or ambiguous
Motion for Summary Judgement
No genuine dispute of a material fact
Can make a motion until 30 days after discovery
If denied, not appealable
Moving party can use discovery and affidavits, and moving party bears the burden to show
Motion for JMOL
D can make a motion after P’s case, or either party after both sides rest
A reasonable jury would not have a legally sufficient evidentiary basis to find for the non moving party
Evidence viewed in light most favorable to nonmoving party
Renewed JMOL
Make a motion for jmol before case goes to jury, then case goes to jury. After case goes to jury and WITHIN 28 DAYS AFTER THE VERDICT, if judge agrees no reasonable jury could have found that way, judge may overturn the verdict
Remittitur
A new trial could be ordered unless party agrees to a reduction of the award
Complaint
Filing commences the statutory time
SERVICE MUST BE WITHIN 90 DAYS
Must include:
1. Basis for jurisdiction
2. Summary of the facts
3. Demand for relief
Answer
MUST BE SERVED WITHIN 21 DAYS AFTER SERVICE OF COMPLAINT
Compulsory Counterclaim
Arises out of the same transaction or occurrence as original claim
Court already has supplemental jurisdiction
Permissive counterclaim
Needs independent jurisdiction
Permissive joinder
Multiple P’s can join together to sue someone
Must arise from same transaction or occurrence
Compulsory Joinder - Necessary Party
Complete relief could not be afforded without having them joined in the party because it would impair their interest
If joining them would ruin jurisdiction, case will still go forward
Compulsory Joinder - Indispensable Party
If you don’t join them, it would prejudice them
If you join them and it would ruin jurisdiction, case would be dismissed
Elements to a Class Action
Size - Case must be so large that individual claims would be impractical
Common Question - Common among everyone
Typicality - Claims of representatives have to be typical of all members
Fair Representation - Reps fairly represent the class
Intervention as of Right
Dont need court permission if you have an interest in the property or the transaction that is the subject of the suit, and it would impair or impede their ability to protect the interest
Permissive Intervention
Claim or defense that is a common question of law or fact
Statutory Interpleader
Nationwide service of process is allowed
As long as any two claimaints are diverse, okay jurisdiction and only $500 at stake
Rule Interpleader
Complete diversity is required
No nationwide service and $75,000 amount required
Third Party Interpleader
D believes someone else owes them money for all or part of the claim
Look for contribution or indemnification
Crossclaims
One party suing another
Needs:
1. Same transaction or occurrence
2. One party must be asking for actual relief from the other party
Work Product
Immune from discovery
Any material prepared by counsel or someone working with counsel in anticipation of trial
Will be privileged unless substantial need for the material and cannot without undue hardship obtain it with other substantial means
Deposition
Written or Oral
PArty or non party
10 IS THE LIMIT
Interrogatory
Only to a party
Written questions, answered in writing
25 IS THE LIMIT
Default Judgment - Entry by Clerk
If P’s claim is “for a sum certain or a sum that can be made certain by computation,” the clerk may enter default judgment based on an affidavit by P showing the amount due.
Default Judgment - Entry by Judge
If P’s claim is not for, “a sum certain or a sum that can be made certain by computation,” then only the judge may enter a default judgment on the claim.
If the judge feels that an evidentiary hearing is needed to compute the amount, the judge is authorized to hold such a hearing.
If the party against whom the default judgment is sought appeared in the action either personally or by a representative, then D is entitled to 7 days advance written notice
2 Dismissal Rule
First voluntary dismissal is without prejudice. A second voluntary dismissal is with prejudice.
Claim Preclusion and Issue Preclusion
Follow rule of court that issued the first judgment or fact-finding: The second court must always follow the claim or issue preclusion rules of the first court that issued the prior judgment or finding-of-fact whose effect is in question.
