civ pro Flashcards
aggregation multiple plaintiffs
no unless joint interest in relief
no if recovering separately
aggregation multiple d’s
no unless jointly liable
supplemental jurisdiction
A court may exercise supplemental jd over claims that form the same case or controversy as a claim over which it has original jd. Cases are so closely related if they arise from the same transaction or occurence and share common questions of law or fact.
When may smj be declined
when the state law claims predominate over the federal claims
when no claims over which it has original smj are left
when it involves a novel or complex issue of state law
removal jd
- find the appropriate federal district court based on the location of the state court
- file notice of removal within 30 days
- provide fed. court w all papers filed
- serve copies on all parties of notice of removal
- serve copy on state court
At that point removal is automatic
pj
deliberate minimum contacts; such that
exercise of jd over defendant comports with traditional notions of fair play and substantial justice
minimum contacts
can be satisfied by either general jurisdiction; or specific jd
general jd
contacts are systematic and continuous that litigant is essentially at home in the forum state
corp. place of incorporation; corporate headquarters
A defendant is subject to any and all claims raised against it in such a state.
specific jd
claims must arise out of or relate to defendant’s deliberate contacts with the state.
transient jd
defendant is served while physically present in forum state
traditional notions of fair play and substantial justice
forum state’s interest in regulating the kind of activity involved
forum state’s interest in providing a forum for its residents
whether another forum is even available
location of witnesses and evidence
resolve disputes efficiently in the interstate judicial system
time to serve s&c
90 days of filing complaint
effect of failure to serve within 90 days
dismissal without prejudice; or
directive to serve within specified time
Personal service on an individual
service may be made by delivering the summons and complaint
- to the person himself
- to someone of suitable age and discretion who resides in the individual’s current dwelling or usual place of abode;
- according to methods prescribed by state law;
- to an agent authorized to receive service
service upon a corporation
in accordance with state law or
delivering the s&c to an officer or agent of the corporation
service on foreign defendant
any manner not prohibited by int’l agreement
cannot be served by personal service
email if it (1): is reasonably calculated to provide notice of the action such that it satisfies due process; and (2): it does not violate an int’l agreement
venue
venue is proper in
a judicial district in which one defendant resides if all defendants reside in the same state
any judicial district in which a substantial amount of events giving rise to the cause of action occurred; or
if venue can’t be found by any of the first two methods, any district IN which any of the defendants could be subject to pj
transfer of venue
transfer of venue is proper if:
needed in for the convenience of the parties and witness or in the interests of justice; and
if the receiving court is one that could have entertained the suit in the first place
transfer of venue law applied
the receiving court applies the substantive law of the transferor court if venue was proper there
if venue was improper in the transferor court, or if it would have been proper but for failure to apply a forum selection clause, the law applied is that of the transferee court
forum selection clauses venue transfer
Courts will enforce a forum selection clause unless special factors such as unusual hardship or unequal bargaining power are shown.
Preliminary injunction
Notice to the adverse party
security bond in an amount the court deems proper
Likelihood of success in the merits
Likelihood of irreparable harm in the absence of an injunction
the harm resulting from denying the injunction outweighs the harm that would result if the injunction were granted
Granting the injunction is in the public interest
temporary restraining order
Same elements as preliminary injunction
May be granted pursuant to an ex parte hearing if the moving party shows
the likelihood of immediate and irreparable harm
certifies in writing any efforts made to provide notice to the opposing party and documents why notice should not be required;
and gives security in an amount reasonably calculated to compensate the adversarial party for their losses should the court determine Stace on the merits against the moving party
Expires after 14 days unless the court sets a shorter expiration.
Court and renew the temporary restraining order on a showing of good cause or if the party’s consent
pleadings
short plain statement of the claim showing that pleader is entitled to relief
short plain statement of the grounds for the court’s jd
demand for the type of relief sought
amendments to pleading and relation back
a party may amend its pleading once as a matter of right within 21 days after service of (a): the original pleading; or, if a responsive pleading is required, within 21 days of the responsive pleading or preanswer motion
When does an amendment to a pleading relate back to the original date of filing?
- when so provided by the applicable statute of limitations
- when the amendment asserts a claim arising from the same series of transactions or occurrences
- when the amendment seeks to change a party or party name and
the amendment concerns the same conduct, transaction or occurence
the new party received notice of the original action within 90 days such that it will not be prejudiced;
the new party should have known that the action would have been brought against it but for a mistake concerning the party’s id.
compulsory cc
A counterclaim is compulsory if (1): it arises out of the same transaction or occurence as the opposing party’s claim and (2): it would not require joining another party over whom the court cannot acquire jurisdiction
cross-claim
a pleading may state a claim against a co-party if the claim arises out of the same transaction or occurrence as the original action or counterclaim.
Rule 11 Sanctions
striking paper/pleading, reprimand, censure, referring matter to disciplinary authority
order to pay a penalty
attorney’s fees and other expenses resulting from violation
Rule 11
any paper submitted to the court must be signed by a party or the party’s attorney certifying that
(1) it is not being presented for an improper purpose
(2) the claims, defenses and other legal contentions are warranted and nonfrivolous;
(3): the factual contentions contain evidentiary support or will likely have such support after discovery; and
(4): the denials of factual contentions are warranted or reasonably based on lack of information
to the best of the person’s knowledge, info and belief formed after reasonable inquiry
Sanctions determination
limited to what will deter repetition of similar conduct
whether the conduct was willful
whether part of pattern
effect on litigation
Permissive joinder plaintiffs
under the FRCP, multiple plaintiffs may join in one action if: (1): joint and several relief is asserted by them or the claim arises out of the same transaction or occurence; (2): a common question of law or fact to all plaintiffs exists; and (3): subject matter jd exists for each claim.
permissive joinder defendants
Under the frcp, multiple defendants may be joined in one action if a claim for joint and several relief is asserted against them or the claim against each arises out of the same transaction or occurence; a common question of fact or law to all defendants exists and subject matter jurisdiction exists for each claim.
Required Joinder
A party must be joined in an action if the party is (1): a necessary party; and (2): joinder is feasible.
necessary party
For purposes of required joinder, a party is a necessary party if
(a): the court cant grant complete relief among existing parties without the absent party;
(b): the absent party claims an interest in the action that would be impaired or impeded if that person wasn’t joined; or
(c): the party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.
Intervention as of right
A party has a right to intervene in an action if
they have an interest in the subject matter of the litigation
that the protection of this interest would be impaired by its non-participation; and
their interests are not adequately protected by another party involved in the litigation
permissive intervention
a court has discretion to allow a party to intervene if they have a claim or defense that shares a common question of law or fact with the main action.
The court must consider whether intervention would cause undue delay or prejudice the adjudication of the original parties’ rights.
class action
one or more rep members of a class may sue on behalf of the entire class if
numerosity
commonality
typicality and
adequacy of representation
class certification
class will be certified if
risk of inconsistent or dispositive adjudications
declaratory/injunctive relief is appropriate to the whole class bc the opposing party has acted or refused to act on grounds that apply generally to the class; or
predominance and superiority
ESI sanctions
A party may be sanctioned for failing to preserve ESI only if:
the esi should have been preserved in anticipation of litigation; the party failed to take reasonable steps to preserve it; and the information cannot be restored or replaced.
