Civ Pro Flashcards
Forum-Defendant Rule
Removal is improper if:
1. SMJ solely arises from diversity jdx; and
2. any D is from the state which the claim is filed in
*this does not apply if the claim is a fed Q issue
Does Supplement Jdx only apply if there is diversity?
NO – applies to both Fed Q and Diversity
- claims share
- common nucleus of operative fact
- as claim w/in court’s original jdx
When does the “100-mi Bulge Rule” Apply?
- D added to suit via impleader or required joinder
- Served w/ process w/in 100 miles of court
**Rule does not apply to D’s in the OG complaint!
When will a court agree to transfer venue?
OG suit could have been filed in that district
- Convenience of parties
- Witnesses & E in other state
- Interest of justice to any judicial district that
-A. where suit could have been originally brought; or
-B. to which all parties have consented
Venue
Case may be brought in any fed district where:
- any district where a D resides, if all Ds reside in same state
- substantial party of events giving rise to claim occurred in the district, or if property is located there
- any D is subject to court’s PJ (if 1+2 do not work)
What must a court do when venue is improper?
District court must either:
- Dismiss case
- Transfer case to proper venue (if interest of justice requires)
Relation Back
FRCP 15
GR: amended complaint filed after SOL expires is prohibited, unless it relates back
Applies to (1) new claim or (2) changes in party due to mistake
Must arise out of STO
Relation Back: New Claims
Amended complaint post SOL relates back to OG complaint if:
- SOL allows it; or
- new claims arises from STO as OG pleading
Relation Back: Changing Ds
Amended complaint post SOL relates back to OG complaint if:
- SOL allows it; or
- STO as OG pleading and
- new party has notice of suit w/in 90 days of OG filing
- new party knew (should have known) they would be sued but for mistake concerning party’s ID
***IF changing D is not due to mistake, FRCP 15 does not apply
What happens when a party does not object to the jury instructions, but then post-verdict argue that the instructions were plain error
Challenge error in jury instruction
Depends on if the party’s substantial right was affected by error –> if so, then COA can hear the appeal, which is reviewed only for plain error
If no sub right affected –> COA will not hear appeal
Jury Instruction Objections
FRCP 51
- must distinctly state objection & grounds on record
- must object at court-appointed time or promptly after learning of proposed instruction
NOTE: failure to objection won’t 100% bar appeal. If there was a substantial error, COA will review the plain error
Voluntary Dismissal
When P dismisses a suit
Dismisses w/o leave when:
1. notice of dismissal filed before D serves answer or 12motion
2. all parties sign stipulation of dismissal
Usually w/o prejudice, unless:
1. P previously dismissed fed/state claim based on the same claim; or
2. notice or stipulation states otherwise
Involuntary Dismissal
When D moves to dismiss (usually w/ prejudice) suit when P fails to:
- prosecute own action; or
- comply w/ court rules/order
Can move to dismiss via:
1. pre answer motion
2. judgment on pleadings
3. SJ
When is an involuntary dismissal w/o prejudice
- court order says so
- dismissal based on lack of jdx, improper venue, failure to join required party
Compuslory Counterclaim
claim that:
- arises from STO as OP’s claim; and
- do not have to add another party that will destroy jdx
- must be asserted in pending suit
- otherwise it is waived
So even if the parties are not diverse, but OG party has jdx, the court will extend supplemental jdx over the other new party
Permissive Counterclaim
Claim that:
- may be asserted
- in pending suit
failure to assert does not waive the claim
Judgment on the Pleadings + when can you file?
Pre trial motion to get rid of case!
pleadings, attached exhibits + matters of public record show (1) no genuine despite of material fact and (2) movant entitled to JMOL
Timing: once all pleadings have been filed. Usually after complaint and answer is filed, but if there are other claims, then after those are done!
6 Types of Pre-Trial Motions
pre-trial motions to get rid of case
- SJ
- Default Judgment
- Judgment on the Pleadings
- Voluntary Dismissal
- Involuntary Dismissal
- Pre-Answer Motion
To which motions must a court DENY deadline extensions?
RJMOL
Amended or additional findings
New trial
Alter or amend judgment
Relief from judgment
Final Judgment on the Merits
judgment that is based on the substantive elements of a claim or defense––rather than on technical or procedural grounds
Dispute is fully resolved, all court needs to do is enforce
Standard to amend a final pretrial order
court may amend/modify the order only to prevent manifest injustice
Temporary Restraining Order
preserves the status quo of the parties until opp to hold a full hearing on whether to grant a preliminary injunction. TRO has immediate e ffect + lasts max 14
TRO can be issued w/o notice if movant provides:
- affidavit/certified complaint of immediate + irreparable harm; AND
- Atty certifies any effort made to give notice + why notice should not be required.
Movant needs to give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.
Preliminary Injunction
form of relief issued prior to a full hearing on the merits, but only upon notice to the ∆ and a hearing on whether the injunction should issue
P must show:
1. He is likely to succeed on the merits;
- He is likely to suffer irreparable harm in the absence of relief;
- The balance of equities is in his favor; and
- The injunction is in the best interests of the public.
What is an atty certifying when signing the discovery requests
the atty certified to the best of their knowledge that:
- Disclosure is complete and correct
- Request, response or objection is:
2.(a) Consistent with existing law or supported by non frivolous argument to reverse existing law
2(b) Not made for any improper use (harras, undue delay)
2(c) Reasonable & not unduly burdensome or expensive
Violations of discovery rules –sanctions
violation, w/o substantial justificaton, requires the court to impose appropriate sanctions on the signer, party, or both
Sanctions may include:
1. reasoanable expenses
2. atty fees
What must be included in an aswer
- admissions/ denial
- motions that have not already been waived
- affiramtiev defenses
- compulsory counterclaims
Compulsory Counterclaims
Must be asserted in answer or else waived
- arise from STO as earlier claim; and
- do not require adding another party who the court does not have jdx over
When is standard review of De Novo used?
pure legal issues
ex: conclusions of law; content of jury instructions
When is standard review of Clear Error used?
Factual issues in bench trials
- credibility of W
- factual determination s
When is standard review of Substantial E used?
factual issues in jury trials
