Civ Pro Flashcards
What is personal jurisdiction?
About court’s power of the parties
SMJ is court’s power over the case
Because P filed the case, the court automatically has PJ over her
Test for D: does D have sufficient contacts with the forum so that exercise of PJ is fair and rsble?
What is the two-step analysis for whether there is PJ?
Exercise of PJ must first fall within state statute
and exercise of PJ must satisfy the Constitution (due process)
Same whether in fed or state court
What is the statutory step for establishing PJ?
Each state has its own statutes for PJ
Including a long arm statute granting PJ over nonresidents who perform or cause certain things within the state
On exam: if statute is provided, just apply it. If it’s not there, say you need a statute statute and that I’m going to assume the statutory requirement has been satisfied - and then move onto Const analysis.
What is the Constitutional analysis for establishing PJ?
Does the D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
Contact, relatedness, fairness
Contact = purposeful availment and foreseeability
Purposeful availment = contact must result from D’s purposeful availment - from her voluntary act; D must reach out to the forum and the contact must result from this targeting of the forum
Foreseeability = after finding that the D arguably availed herself of the forum, assess if it is foreseeable that D could be sued in the forum? (knew or should have rsbly anticipated that her activities would drag her to court in the state)
If we have that, go to step 2:
Relatedness = does P’s claim arise from or relate to D’s contact with the forum
If yes, related, then we have specific PJ and we can skip to rsbleness/fairness step
If not satisfied, the only way to proceed is with general PJ
General PJ requires the D to be “at home” in the forum state
A person is at home where she is domiciled
General PJ can also be established if D is served with process in the forum state (tag jurisdiction)
A corporation must also be at home - the state in which it in incorporated, and the state in which it has it PPB
If we said yes to related, then we go to step 3:
Fairness = assess whether PJ would be fair or rsble under the circumstances; only specific PJ cases; burden on D and witnesses (has to be pretty severe to not meet this burden); state’s interest; P’s interest
What are the three steps of specific PJ?
Contact, relatedness, fairness
Contact = purposeful availment and foreseeability
Purposeful availment = contact must result from D’s purposeful availment - from her voluntary act; D must reach out to the forum and the contact must result from this targeting of the forum
Foreseeability = after finding that the D arguably availed herself of the forum, assess if it is foreseeable that D could be sued in the forum?
If we have that, go to step 2:
Relatedness = does P’s claim arise from or relate to D’s contact with the forum
If yes, related, then we have specific PJ and we can skip to rsbleness/fairness step
If not satisfied, the only way to proceed is with general PJ - in separate card - deals with being at home
If we said yes to related, then we go to step 3:
Fairness = assess whether PJ would be fair or rsble under the circumstances; only specific PJ cases; burden on D and witnesses (has to be pretty severe to not meet this burden); state’s interest (interest in providing courtroom for its people who are harmed by out of state things); P’s interest (P is hurt and would find it tough to litigate in D’s home state)
What is general PJ?
Contact, relatedness = no; at home/domiciled
Contact = purposeful availment and foreseeability
Purposeful availment = contact must result from D’s purposeful availment - from her voluntary act; D must reach out to the forum and the contact must result from this targeting of the forum
Foreseeability = after finding that the D arguably availed herself of the forum, assess if it is foreseeable that D could be sued in the forum?
If we have that, go to step 2:
Relatedness = does P’s claim arise from or relate to D’s contact with the forum
If yes, related, then we have specific PJ and we can skip to rsbleness/fairness step
If not satisfied, the only way to proceed is with general PJ
General PJ requires the D to be “at home” in the forum state
A person is at home where she is domiciled
General PJ can also be established if D is served with process in the forum state (tag jurisdiction)
A corporation must also be at home - the state in which it in incorporated, and the state in which it has it PPB
So then if the D is at home in the forum state, we have general PJ and we don’t need to assess fairness/rsbleness
In a regular lawsuit, notice consists of what two documents?
(1) a summons, which is a formal court notice of suit and the timing for response; and
(2) a copy of the complaint
Together, these are called process (service of process)
P fills out a form summons for the clerk of court to sign, seal, and issue
Thereafter, P has process served in accordance with Fed Rules
Who can serve process?
Any person who is at least 18 and not a party to the action
Need not be appointed by the court
When must process be served?
If D is to be served within the US, service must take place within 90 days of filing the complaint
May be extended for good cause
What are the four methods of serving process on an individual?
Personal service = process is given to D personally anywhere (in-hand delivery)
Substituted service = serving a substitute for the D; can be done only (1) at the D’s usual place of abode (common sense determination); (2) with someone of suitable age and discretion (doesn’t have to be related); (3) who resides there
Service on agent = delivered to D’s agent; ok if receiving service is in the scope of agency; need agency relationship
State law methods = methods for serving process that are permitted by the law of the state (1) where the federal court sits or (2) where service is made are permitted
What are the two methods for service on a business or organization?
Delivering to an officer (for ex, president, treasurer) or a managing or general agent a copy of the summons and complaint; or
Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made
How can you serve a minor or incomeptent person?
May be made only by a method permitted by the law of the state in which service is to be made
How does a defendant waive service of process?
To request this waiver, P mails the D a notice and request to waive service
P must include a copy of the complaint and two copies of a waiver form, w a prepaid means of returning the form
If D executes and mails the waiver form to the P within 30 days, she waives service of process
If D signs and mails the waiver form back to the P, the P files the waiver in court; the waiver is effective then
So we act as though the D was served w process on the day the P filed the waiver form w the court
If a D waives service of process, do they waive defenses?
No, a D who waives service of process doesn’t waive any defenses like lack of PJ
When does the waiver of service become effective for timing purposes?
When D signs and mails the waiver form back to the P, the P files the waiver in court; the waiver is effective then
So we act as though the D was served w process on the day the P filed the waiver form w the court
What happens if D fails to return the waiver form for waiver of service?
If D fails to return the waiver form, and the P then has the D served personally or by substituted service - if the D didn’t have good cause for failing to return the waiver form, the D must pay the costs of service
What is subject matter jurisdiction?
About the court’s power over the case, and not over the parties
Fed courts have limited SMJ, so they can only hear certain types of case
States courts can generally hear any type of case - general SMJ
What are the federal cases that state courts can’t hear?
Patent infringement, bankruptcy, some federal securities, and antiturst claims
But pretty much everything else, a state court can hear
Can you waive SMJ like you can with PJ?
No, you can waive PJ and consent to have a lawsuit in a certain state even though you normally wouldn’t have to
But you can’t waive SMJ
If a case doesn’t invoke federal SMJ, the fed court cannot hear the case
If it does, the judgment is void
What are the two main types of cases that can be heard in federal court?
Diversity and federal questions cases
What are the two requirements for diversity of citizenship cases?
Case is either between citizens of different US states or between a citizen of a US state and a citizen of a foreign country
AND
Amount in controversy exceeds $75K
What does complete diversity mean?
If any plaintiff is a citizen of the same state as any defendant, there isn’t complete diversity
Determined when the case is filed
It’s ok if multiple Ps are of the same state, or multiple Ds are of the same state - it just can’t cross the line and you can’t have a P that’s the same state as a D
Plaintiff is a U.S. citizen domiciled in Italy. Plaintiff sues Defendant, a citizen of California, in federal court. Is there alienage jurisdiction?
Is there diversity SMJ?
No, bc P is not a non US citizen, so no alienage jurisdiction
No diversity SMJ bc P is not a citizen of a US state bc she’s domiciled in Italy
Suppose we have a non-U.S. citizen admitted to the U.S. for permanent residence (that is, a green card holder). That individual is domiciled in a U.S. state. Is she considered to be a citizen of that U.S. state?
That means litigation in which a non-U.S. citizen is a litigant might invoke alienage, but not diversity of citizenship. But that, by statute, alienage jurisdiction is withdrawn when the green card holder is domiciled in the same state as a party on the other side of the case.
How is the citizenship of a human determined?
Citizenship of a person who is a US citizen is the one state in which she is domiciled
Domicile is determined by: (1) physical presence in the new domicile; and (2) the intent to make that place your home for the indefinite future
What is needed for a person to establish a new domicile for citizenship purposes?
Domicile is determined by: (1) physical presence in the new domicile; and (2) the intent to make that place your home for the indefinite future
What is the citizenship of a corporation?
Corporation is a citizen of any state or country in which it is incorporated AND of the one state or country in which it has its principal place of business
Where is the PPB? It’s the state from which the corporation’s managers direct, coordinate, and control business activities - nerve center - headquarters
What is the citizenship of an unincorporated association?
An unincorporated association takes on the citizenships of all of its members
If it’s a limited partnership, you include the citizenships of general and limited partners
What is the citizenship of a decedent, minor, or incompetent?
You must sue them through a representative
Representative’s citizenship is irrelevant
Use the citizenship of the dec’d, minor, or incompetent
What is the citizenship for a class action?
The citizenship of the named representative(s) of the class is used
How do you calculate the amount in controvery?
Only the claim itself is considered
Litigation costs or interest are not included
Whatever the P claims in good faith is ok unless it is clear to a legal certainty that she cannot recover more than $75K
Any single P may aggregate all of her claims against a single defendant - and claims don’t need to be related to each other
Exception: joint claims - you use the total value of the claim - number of parties is irrelevant
Plaintiff-1 sues Defendant for $50,000. Plaintiff-2 sues the same Defendant for a $40,000 claim. Can we aggregate these claims?
No, can’t aggregate these claims because there are multiple plaintiffs
Can only aggregate claims of one P against one D
Plaintiff sues joint tortfeasors X, Y, and Z for $75,000.01. Has the amount in controversy been satisfied?
Yes, w joint claims, we look at total value of the claim; any one of these tortfeasors can be liable for the money
How do we determine amount in controversy for cases of equitable relief?
Equitable relief includes issuance of an injunction, specific performance, rescission of a contract, etc.
Two tests - if either is met, most courts find that amount in controversy is satisfied
One test looks at plaintiff’s viewpoint = if granted, does the relief have a value of more than $75K to the P?
Other test looks at D’s viewpoint = if granted, will the relief requested by the P cost the D more than $75K?
Include both on exam
Even if the requirements for diversity or alienage jurisdiction are met, federal courts decline to hear actions for…
Divorce, alimony, child custody, and actions to probate an estate
Can a plaintiff create diversity by moving?
Yes, if the P changes domicile after the COA occurred but before suit is actually commenced/filed, that’s fine
That’s a genuine change of citizenship, and diversity is ok
What is required for a federal question case?
For there to be FQ jurisdiction, the P’s claim must “arise under” federal law - in a well pleaded complaint
Citizenship of parties is irrelevant
Amount of controversy isn’t relevant
Well pleaded complaint rule = not enough that some fed issue is raised by the complaint; P’s claim itself must arise under federal law
Ask if P is enforcing a federal right = if yes, they get FQ
What is removal of a case?
P sues D in state court - but D would prefer to litigate in fed court
D might be able to remove the case to fed court
If removal was improper, the fed court can remand the case to state court
What is the standard for removal?
You can remove a case when the case filed in state court could have originally been brought in fed court via diversity or FQ
How is a case removed?
D files notice of removal in fed court, stating grounds of removal, which means fed SMJ (diversity or FQ)
Permission of the state or federal court is not required
D attaches all documents that were served on her in the state action
D then promptly serves a copy of the notice of removal on adverse parties and files a copy of the notice of removal in state court
What is the timing of removal?
D must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable
Usually, means no later than 30 days of service of process
Who must join in the removal?
All Ds who have been served w process must join in removal
Need not join in the same document - they can file separate notices of removal
If Ds are served at different times, and a later served D initiates timely removal, the earlier served D may join in the removal even though her 30-day period for initiating removal may have expired
Plaintiff sues Defendant-1 and Defendant-2 on June 1. Defendant-1 is served with process on June 1. Defendant-1 does not remove the case within 30 days. Then, Defendant-2 is served with process on August 1. Can the second defendant now remove the case?
Yes but not alone; if D1 and D2 remove now, they can do that; new 30 day window w service on D2
Can plaintiffs remove cases?
NO - never
This is true even if the D files a counterclaim against the P that, by itself, could be heard in federal court
What are the two limitations to removing a case based solely on diversity of citizenship?
The case should not be removed if any D is a citizen of the forum state (in-state D rule); AND
The case should not be removed more than one year after the case was filed in state court
Plaintiff, a citizen of Georgia sues Defendant-1, a citizen of Minnesota, and Defendant-2, a citizen of Alabama on state-law claims for $500,000 in an Alabama state court. Can the defendants remove?
In-state defendant limitation applies bc D2 is citizen of AL and we’re in AL state court, so case should not be removed; if it is removed, it should be remanded and kicked back
What are the 30-day and 1-year removal rules?
30 days to remove from the time it becomes removable
And then no removal more than 1 year after case is filed (in diversity cases)
But exception: 1-year restriction doesn’t apply if D originally joined to prevent removal
To what court can a defendant remove a case?
To the federal district court “embracing’ the state court where the case was filed
Doesn’t matter if this venue would have been proper under the venue statutes
If a P’s motion to remand is based on a reason other than lack of SMJ, when must she move to remand?
She must move to remand no later than 30 days after the filing of the notice of removal
If P fails to do so, she waives the right to have the case remanded to state court and the case will stay in federal court
This would be for things like the citizens have diversity and $ so there’s no problem with SMJ, but one of the D’s was an in-state D so you never should have removed in the first place (this and the one year time limit)
If a P’s motion to remand is based on lack of SMJ, what is the time limit to remand?
There is no time limit on ordering remand
An objection to SMJ is never waived, and a court without SMJ is powerless to act on the case
What is supplemental jurisdiction?
A form of federal SMJ
Diversity and FQ SMJ get cases into federal court
Supplemental jurisdiction gets CLAIMS into a federal case, even though the claims can’t use diversity of citizenship or FQ SMJ
So you start with a claim that’s already in fed court based on diversity or FQ, and you want to add in another claim
Federal court must have SMJ over every single claim in a case
And remember, if there is just one P and one D, then you don’t need supp J because you can aggregate those claims in amount and type, even if they’re completely different things
What are the steps to follow on a question asking about supplemental jurisdiction?
Assess whether the claim to be joined satisfies the common nucleus test
If so, ask whether the case got into fed court under diversity or FQ
- If FQ, the limitation does not apply, so supplemental jurisdiction is ok
- If it was diversity, then apply the limitation. The limitation is as follows. There is no supplement jurisdiction if the claim:
– Is asserted by a plaintiff; UNLESS
– There are multiple plaintiffs, and the claim by one of them doesn’t meet the amount in controversy requirement
What is the common nucleus test?
Test used to determine if a claim can be added as supplemental jurisdiction
Assess whether the claim shares a common nucleus of operative fact with the claim that satisfied federal SMJ
When a claim arises from the same transaction or occurrence as the underlying case - but can be broader than that
If claim meets this test, then you ask whether original claim got in under FQ or diversity - if FQ, you’re good to go with this claim - if diversity, then if P is bringing new claim, it doesn’t get Supp J, unless it falls into the exception where multiple Ps are in a diversity claim and one of their cases doesn’t meet amount in controversy, then it could get Supp J
What is the limitation on Supp J?
Generally, in diversity cases, claims by Ps can’t invoke supplemental jurisdiction
But exception: applies when there are multiple Ps, and the claim by one of them doesn’t meet the amount in controversy requirement
Any other time a P has an additional claim in a diversity case, it can’t invoke Supp J, so the claim must satisfy diversity or FQ SMJ
Plaintiff-1, a citizen of Virginia, and Plaintiff-2, also a citizen of Virginia, sue Defendant, a citizen of Pennsylvania, on state-law tort claims. Plaintiff-1’s claim is for $100,000. Plaintiff-2’s claim arises from the same T/O and is for $50,000. Plaintiff-1’s claim meets the requirements for diversity, so that gets the case into federal court.
But Plaintiff-2’s claim does not meet the requirements for diversity because, even though citizenship is diverse, the claim does not exceed $75,000. Can the claim by Plaintiff-2 invoke supplemental jurisdiction?
Yes, meets test; limitation doesn’t apply bc there are multiple Ps and one of their claims doesn’t meet the amount in controversy requirement
Plaintiff, a citizen of Ohio, sues Defendant, a citizen of Iowa, in federal court. Plaintiff asserts two state-law claims: one for $100,000 and one for $50,000. Is this OK?
Yes, this is not a supp juris hypo; it’s a diversity hypo; we simply aggregate the claims; one P, one D, we simply add the claims even though the amounts are diff and they could be totally unrelated
What are the steps of an Erie question (determining whether a federal court should follow state or federal law)?
Step 1: Is there a fed law (Const, fed statute, FRCP, FRE) on point that directly conflicts with state law?
If so, you apply that federal law so long as it’s valid
If it’s a FRCP, it’s presumptively valid if it’s arguably procedural, and FRCPs always are - so always apply the FRCP
-
Step 2: If there is no fed law on point, fed judge must apply state law if issue is substantive
The 5 clearly substantive issues (so court must apply state law): conflict or choice of law rules; elements of a claim or defense; SOLs; tolling of SOLs; standard for granting a new trial because the jury’s award was excessive or inadequate
Fed court must follow state law in the above cases if there’s no federal law on point
(For SOL, remember that then there is a determination of WHICH state’s SOL applies in a conflict of choice analysis)
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Step 3: If there’s no fed law on point and the issue isn’t one of the above five, fed judge must determine whether issue is substantive
Some factors:
(1) outcome determinative = would applying or ignoring the state rule affect the outcome of the case? If so, probably substantive and should use state law
(2) balance interest factors = does either system have a strong interest in having its rule applied? One with greater interest should have its rule applied
(3) avoid forum shopping = If fed court ignores state law, will it cause parties to flock to fed court? If so, should probably apply state law
SMJ told us when we can take a case to federal court. Venue tells us what?
Exactly where to bring it
In which federal court to bring it
Where are the two places a P can bring a federal claim (remember these are for cases initially filed in federal court)?
Can lay venue in any district where:
All D’s reside (residential venue); venue proper in any district where a D resides as long as all Ds reside within that state
or
A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue)
For venue purposes, does it matter where P resides?
No, doesn’t matter - only Ds and COA matter
Where do defendants “reside” for venue purposes?
A human “resides” in the federal district where she is domiciled (like in PJ, state where she is domiciled)
A corporation resides in all districts where it is subject to PJ for the case (so place of incorporation and PPB; or locations of all its members for unincorporated business)
How does transfering courts work?
Unlike removal and remand, which is going from state to federal, transfer is going between federal courts
Transferee must be a proper venue and have PJ over the D - and generally those must be true without waiver by the D
But exception: under a transfer statute, court can transfer to any district, even an improper venue, if all parties consent and the court finds cause for the transferor - unlikely though that a P would consent to transfer because they picked the venue in the first place
Plaintiff sues Defendant in the District of Minnesota. Defendant moves to transfer the case to the District of Hawaii. There is no PJ over Defendant in Hawaii, and venue is not proper in Hawaii, but Defendant is willing to waive those matters. Can the case be transferred to the District of Hawaii?
No, venue and PJ generally must be proper in the transferee court without waiver by the D - but exception where transfer from a proper venue
What is a transfer from a proper venue?
If original district is a proper venue, court can order transfer based on convenience of parties, witnesses, and in interests of justice
Because transfer overrides P’s choice of forum and P chose a proper venue, the burden is on the person seeking transfer (usually D)
Court will consider both public and private factors showing that another court is the center of gravity for the case
Public: court will consider things like what law applies, what community should be burdened w jury service, desire to keep a local controversy in local court
Private: convenience for parties, evidence
Choice of law: when a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the transferor court (but check for forum selection clauses)
Forum selection clause: provision in which the parties agree that a dispute bt them will be litigated in a partiucular place; if one party sues another in violation of the FSC, D may seek to enforce the FSC through a motion to transfer
Court will usually uphold unless unrsble; federal law governs transfer so a fed court may enforce an FSC clause even though a state court in that forum wouldn’t
When there’s a valid FSC, only public interest factors are considered for transfer; and
When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules (and remember that under Erie, the fed court is required to apply the choice of law rules of the state in which it is located)
What is the choice of law when a diversity case is filed in a proper venue but the court orders transfer?
When a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the transferor court (but check for forum selection clauses)
What effect do forum selection clauses have on venue transfers?
Forum selection clause: provision in which the parties agree that a dispute bt them will be litigated in a partiucular place; if one party sues another in violation of the FSC, D may seek to enforce the FSC through a motion to transfer
Court will usually uphold unless unrsble; federal law governs transfer so a fed court may enforce an FSC clause even though a state court in that forum wouldn’t
When there’s a valid FSC, only public interest factors are considered for transfer; and
When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules (and remember that under Erie, the fed court is required to apply the choice of law rules of the state in which it is located)
What will a court do if the original venue is improper?
If original district is an improper venue, the court may transfer in the interest of justice or dismiss
When the federal court transfers a diversity case because the original venue was improper, the transferee applies its own choice of law rules - not the choice of law rules of the transferor court (where it’s coming from)
What is forum non conveniens?
FNC applies when there is another court that is the center of gravity for the case
But here, the court can’t transfer the case tot hat court because it is in a different judicial system
Court invoking FNC will stay (hold it in abeyance) or dismiss the case
Whether court dismisses or stays, idea is that the P will then sue in the other court, and the court may impose conditions on the party requesting transfer such as requiring her to waive service of process
FNC decision is based on the same public and private factors as transfer above
Other court must be available and “adequate”
Usually the forum will be adequate unless the P can get no remedy there
What commences an action in federal court?
The filing of the complaint
What must the complaint contain?
(1) statement of grounds of SMJ (doesn’t need to allege grounds for PJ or venue)
(2) a short and plain statement of the claim showing the P is entitled to relief
(3) demand for relief sought
P must plead sufficient facts to support a plausible claim
Fraud, mistake, and special damages must be pleaded with particularity or specificity
What matters must be pleaded with more detail?
Fraud, mistake, and special damages must be pleaded with particularity or specificity
Rule 12 requries the D to respond to a complaint in one of what two ways?
by motion or by answer
to avoid default, must do one of these two things no later than 21 days after being served w process
If D waived service, D has 60 days from when P mailed the waiver form to respond
When must a defendant respond to a complaint?
Must either make a motion or answer within 21 days after being served w process
If D waived service, the D has 60 days from when the P mailed the waiver form to respond
What is a rule 12(e) motion for more definite statement?
Used when the complaint is so vague or ambiguious the D simply cannot respond
Must make this motion before answering
What is a rule 12(f) motion to strike?
Asks the court to remove redundant or immaterial things from a pleading (a complaint, an answer, etc.)
Any party can move to strike
Ex: a D moves to strike allegations of fraud; or a P moves to strike an affirmative defense
What rule 12(b) defenses must be waived if not put in the first Rule 12 response (motion or answer)
Lack of PJ
Improper venue
Improper process; and
Improper service of process
(3 Ps and a V)
What rule 12(b) defenses can be raised later and are not waived if not asserted right away?
Failure to state a claim
Failure to join an indispensable party
^ Can be made as late as at trial
Lack of SMJ may be raised at ANY time - never waived
And if a court determines there is no SMJ, it must dismiss or remand if the case had been removed from state court
Suppose the defendant makes a motion to dimiss under Rule 12 and is denied? What must she do?
Serve her answer no later than 14 days after notice of the denial
Are motions pleadings?
No, they are requests for a court order
Are answers pleadings?
Yes
What two things does a defendant do in the answer?
(1) Respond to allegations in the complaint
- Admit/deny some or all of the allegations, or state that she has insufficient knowledge to admit or deny
- Failure to deny an allegation is an admission except regarding the amount of damages
(2) Raise affirmative defenses
- Inject a new fact into the case that would allow the D to win
- SOL; SOF; res judicata; self-defense, etc.
- all Rule 12(b) defenses can be pleaded as affirmative defenses
- If a D fails to assert an affirmative defense in the answer, the court may treat it as waived subject to the timing rules in Rule 12
What is the plaintiff’s and defendant’s general right to amend?
By Plaintiff: P has right to amend her complaint once no later than 21 days after the D serves her first Rule 12 response
By Defendant: D has a right to amend his answer once no later than 21 days of serving it
And note: if D’s first response was an answer in which he forgot to raise waivable defenses and forgot to raise an affirmative defense, he has a right to amend his answer to include the waivable defenses and affirmative defense
How can a party amend a pleading after the period to amend as of right?
After the period to amend as of right, the amending party must seek leave of court (or get the written consent of the opposing party)
Court will grant leave to amend if “justice so requires”
Factors courts look to: length of delay, prejudice to other party, futility of amendment
What is variance?
Variance comes up when the evidence at trial doesn’t match what was pleaded
If other party fails to object at trial, party introducing the evidence may move to amend the complaint to conform to the evidence
Plaintiff sues for breach of contract and Defendant answers. At trial, Plaintiff introduces evidence that Defendant assaulted her. Defendant doesn’t object. What happens?
bc D didn’t object, that evidence is allowed in and then the P may move to amend the complaint to include the assault
How does an amended pleading relate back and how does this affect SOLs?
An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading
Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a SOL problem
To change a defendant, the amendment will relate back if:
(1) the amendment concerns the same conduct, transaction, or occurrence as the original;
(2) the D had such knowledge of the case such that she will be able to avoid prejudice; and
(3) the D knew or should have known that, but for a mistake, she would have been named originally
The knowledge in the last two points must have come within the period for service of process (90 days after the filing of the complaint)
Applies when the P sued the wrong D first, but the right D knew about it
What are supplemental pleadings?
Supp pleadings set forth things that happened after the pleadings were filed
There is no right to file a supp pleading
You must make a motion - in discretion of court whether it’s granted or not
The plaintiff sues the defendant for breach of contract. After the case is filed, the defendant punches the plaintiff in the nose. The plaintiff wants to add this tort claim to the existing case. Does the plaintiff make a motion to amend the complaint?
no, it must be a motion for leave to file a supp pleading; not an amendment; about an event that occurred after the complaint had already been filed
What does Rule 11 apply to?
Applies to all papers except discovery
What does a lawyer certify when she signs a document under Rule 11?
When a lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after rsble inquiry:
(1) the paper is not for an improper purpose
(2) the legal contentions are warranted by law or a nonfrivolous argument for a law change; and
(3) the factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation
What must be done before imposing a sanction?
Before imposing a sanction regardless of who filed the motion, the court must give the sanctioned party an opportunity to be heard
If monetary sanctions are imposed, where does the money go?
The money is often paid to the court, not to the other party
What does an opposing party do if the other part violated Rule 11?
The opposing party can’t immediately file a motion for sanctions
Rather, she serves the motion on the other parties but does not file with the court yet
Party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions
If she doesn’t fix it, then the motion can be filed with the court
Plaintiff sues Defendant in federal court, alleging diversity jurisdiction. Defendant is convinced there is no diversity and moves to dismiss for lack of SMJ. To Defendant’s amazement, the judge denied the motion and upheld diversity jurisdiction.
Eleven days later, Defendant served and filed his answer, asserting lack of PJ.
Is Defendant’s answer timely and has Defendant waived PJ?
he answered within 14 days after notice of the denial so he’s timely; but he waived PJ bc it wasn’t in his first Rule 12 response
What two things must be true for joinder to be permitted?
(1) joinder must be allowed by the FRCP; and
(2) there must be SMJ over the case
Can a plaintiff join unrelated claims to her original claim against an adverse party?
Yes, under the FRCP, a P may join any additional claim she against that adverse party - even if the additional claim is unrelated to the original claim
BUT there MUST be SMJ over the claim
A plaintiff, a citizen of Wisconsin, sues a defendant, a citizen of Illi- nois, for (1) a $25,000 breach of contract, (2) an unrelated $25,000 tort, (3) an unrelated violation of state consumer protection statutes for $25,000, and (4) cheating at poker, again for $25,000.
Is this allowed under the FRCP and SMJ?
Yes, a P can have as many claims as she wants against a D, even if they aren’t connected per the FRCP
For SMJ, a single P can aggregate as many claims as she wants against a single D, and those amounts can meet the amount in controversy requirement - and then there is diversity here too, so we have SMJ
What is the P is planning a case and wants to have multiple Ps or multiple Ds?
Rule is that the claims by multiple Ps or against multiple Ds must:
(1) arise from the same transaction or occurrence; and
(2) raise at least one common question of law or fact
