Civ Pro Flashcards
Personal Jurisdiction
1) Must fall w/in a state statute
- long arm statute–nonresidents who perform or cause certain events w/in a state
2) Constitution
-Does D have min. contacts w/forum so JX does not offend traditional notions of fair play and substantial justice
Contact
Must be minimum contacts
1) Purposeful availment
-contact must result from D’s purposeful availment–a voluntary act
-D must reach out to forum and contact must result from targeting forum
-can be established by causing effect in forum w/out phys. presence (marketing, using roads, domicile, traveling, tortious email, website targeting customers in state)
2) foreseeability
-is it foreseeable D could be haled into court in forum
Relatedness
Does P’s claim arise out of or relate to D’s contact w/forum
Substituted Service
1) D’s usual place of abode
2) Suitable age and discretion
3) D must reside there
*agent service ok if w/in scope of agency (appointed by k)
Subject Matter JX
1) Fed Q
-well-pleaded complaint
-claim itself must arise under federal law
2)Diversity
-citizenship/domicile (individuals)
-physical presence and intent to remain indefinitely
-citizenship (business)
-any state incorporated
-PPB
Aggregation
Any single P may aggregate against a single D and claims may be unrelated
Equitable relief
-injunction
-specific performance
-rescission
-for amount in controversy purposes, look at value to P or cost to D and if greater than $75k
Removal JX
Requirements
-Fed SMJ necessary and state ct. jx not necessary
How
-D files notice of removal
-States grounds for removal (SMJ)
-Attaches docs served on her
D serves notice of removal on adverse parties and files a copy in state ct.
-w/in 30 days after service of first paper showing case is removable
-to federal district court embracing state court
Limits on removal
1) If any D is a citizen of forum state
2) More than 1 year after case filed in state court
Remand
-P moves to remand
-If based on reason other than lack of SMJ, must move w/in 30 days after filing notice of removal
-No SMJ=no time limit (SMJ never waived)
Supplemental JX
A) check for diversity or FQ for case already in court
-if based on diversity, no supplemental JX if claim is asserted by a P
B) If no diversity or FQ for supplemental claims
1) Common nucleus of operative fact (same T/O)
Limits on supplemental JX
Only applies to diversity cases
Exception to limit on supplemental JX
Multiple P and a claim by 1 does not meet amount in controversy
Erie Doctrine
1) Is there a federal law in conflict w/state law?
-If yes, apply federal law under Supremacy Clause
-FRCP ok if “arguably procedural”
2) Apply substantive state law
3) If no federal law on point and not one of five substantive issues
To determine if an issue is substantive (for Erie purposes)
-Outcome determinative test–would applying/ignoring state law affect the outcome–if yes, it is substantive, and apply state law
-balance of interest–interest in applying law (federal or state) (stronger interest applies)
-avoid forum shopping–apply state law if ignoring state law will cause parties to flock to federal court
Substantive law for Erie purposes
-conflict (choice) of law rules
-elements of claim/defense
-SOL
-Rules for tolling SOL
-Standard for new trial bc damages were excessive/inadequate
Venue statute
P may lay venue in any district where
1) All D reside
2) Substantial part of the claim arose or substantial property was involved
Residence for venue purposes
1) Human–fed dist. of domicile
2) Business–All dist. where subject to PJ
Public factors when considering transfer
-what law applies
-what community should be burdened w/jury service
-desire to keep a local controversy in a local court
Private factors when considering transfer
-convenience
Content of a complaint
a. statement of grounds of SMJ
b. short and plain statement of the claim showing that the P is entitled to relief
c. a demand for relief (damages, injunction, declaratory judgment)
d. sufficient facts to support a plausible claim
Special pleading requirements for certain cases
Fraud, mistake, and special damages must be pleaded w/particularity or specificity
Rule 12 Motions (Issues of form)
-12(e) motion for more definite statement when the complaint is so vague or ambiguous the D cannot respond (must be made before answering)
-12(f)- to strike asks the court to remove redundant or immaterial things from a pleading
Rule 12(b) waivable defenses
Waived if not put in the first Rule 12 response (motion or answer)
-Personal JX
-Improper venue
-Improper process
-Improper service of process
Rule 12(b) defenses that can be raised as late as at trial
-failure to state a claim
-failure to join an indispensable party
Rule 12(b) defenses that can be raised at any time
Lack of SMJ
Amendment after “right to amend” expires and factors considered
Amending party must seek leave of court (or get written consent of the opposing party). Court will grant “if justice so requires”
-length of delay, prejudice to other party, futility of amendment
Variance
When the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.
Relation back amendment
An amended pleading “relates back” if the pleading concerns the same T/O as the original pleading.
Treated as though it was filed when the original was filed (to avoid SOL problem)
To change a D
(the amendment will relate back if)
-the amendment concerns the same conduct, transaction, or occurrence as the original
-the D had such knowledge of the case such that she will be able to avoid prejudice; and
-the D knew or should have known that, but for a mistake, she would have been named originally
*knowledge must come w/in the period for service of process (90 days after the filing of the complaint)
*P sued wrong D first, but right D knew about it
Rule 11 signature requirement
(what does atty certify)
-the paper is not for an improper purpose
-the legal contentions are warranted by law or nonfrivolous argument for a law change
-the factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation
Joinder
1) Must be allowed by FRCP
2) Must be SMJ
Claims by multiple P or against multiple D must:
1) arise from the same T/O
2) raise at least one common question of law or fact
Necessary and indispensable parties
-is the absentee necessary
-if the absentee is necessary, can the absentee be joined
-if the absentee can’t be joined, can the case proceed anyway
Necessary or required
-w/out the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits); or
-the absentee’s interest may be harmed if she is not joined; or
-the absentee claims an interest that subjects a party (usually D) to a risk of multiple obligations
Can the absentee be joined; joinder is feasible if:
-there is PJ over absentee and there will be federal SMJ over the claim by or against the absentee
If absentee cannot be joined, court must consider
-is there an alternative forum available (state court)
-likelihood of harm to absentee; and
-can the court shape relief to avoid that harm to the absentee
Indemnity
shifts liability completely, so third party D must cover the full claim
Contribution
shifts the liability pro-rata
Process for impleading third party D
1) file a third party complaint naming TPD and
2) have that complaint formally served
Personal JX loophole (impleaded parties)
PJ over an impleaded party if served in a district and w/in 100 mi from fed ct that issued summons
if more than 100 mi, must be traditional contacts-based PJ
Intervention
A nonparty absentee uses intervention to bring herself into the case (as a P or D)
*court may realign the intervening party if it thinks absentee came in on the “wrong” side; application to intervene must be timely; may be “of right” or “permissive”
Intervention of right
If the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is “of right”
Permissive intervention
If the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention is permissive and discretionary–usually allowed unless it would cause delay or prejudice
Interpleader
Applies if separate actions might result in double liability against a stakeholder
-permits a party to require two or more adverse claimants to the stake to litigate among themselves to determine who has the valid claim
Rule 22 interpleader
(1) diversity and more than $75k
(2) FQ claim–normal service and venue rules apply
Statutory interpleader
requires only diversity between any two contending claimants and $500 be in issue–service may be nationwide and venue is proper where any claimant resides
Class action requirements
a. numerosity–too many members for joinder
b. commonality–some issue in common
c. typicality–rep’s claims are typical of claims of the class
d. representative adequate–rep will fairly and adequately rep the class
Types of class actions
- Prejudice–necessary to avoid harm to class members or non-class party
- Injunctive or declaratory relief
- Common question or damages
-common questions must predominate over individual questions
-class action is a superior method to handle disputes
Notice to class (in type 3) tells class:
-they can opt out
-will be bound by the judgment if they don’t opt out
-can enter a separate appearance thru counsel
SMJ in class actions
1) FQ
2) diversity–only the citizenship of the class rep is considered and claim must exceed $75k
Class Action Fairness Act–grants SMJ separate from diversity JX if:
-at least 100 class members
-any class member is of diverse citizenship from any D
-the aggregated claims of the class exceed $5M
Required initial disclosures
Names, numbers, addresses of persons w/discoverable info, and the topics on which they have discoverable info, who the party may use to support her claims or defenses
Docs and tangible things a party may use to support claims or defenses (photos, records, videos, ESI)
Must be in party’s custody and control (docs and tangible things that are not in the party’s control need not be disclosed)
Computation of relief along w/supporting docs
Insurance coverage that might cover all or part of the judgment
Penalty for failure to disclose
That party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless
Expert witnesses and discovery
Each party must disclose the ID of and written report prepared by EW and include:
-opinions
-bases for opinions
-facts used to form opinions
-EW qualifications
-payment of EW
Required pretrial disclosures
No later than 30 days before trial, parties must give detailed information about their trial evidence, ID of witnesses who will testify live or by deposition and docs, ESI and other things they intend to introduce at trial
Use of depositions
Subject to rules of evidence, may be used at trial
-to impeach the deponent
-for any purpose if the deponent is an adverse party
-for any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence
Request for production
Asks a party to make available for review and copying docs or things, including ESI, or to permit entry on designated property to inspect, measure
Must be produced in the form the requesting party specifies, but responding party may object
For a medical exam, requesting party must show
(1) person’s health is in actual controversy
(2) good cause
Request for admission
Written request that someone admit certain matters
Every discovery request and response is signed by counsel certifying that it is:
-warranted
-not interposed for an improper purpose; and
-not unduly burdensome
Duty to supplement
If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery
Scope of discovery
Standard: anything relevant to a claim or defense and proportional to the needs of the case
Privilege (discovery)
A party can object to discovery on the basis of evidentiary privilege
Work product protection
Material prepared in anticipation of litigation
Qualified work product
Sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way
Absolute work product
Cannot be discovered
Opinion work product
Consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered
Asserting privilege or work product
If a party withholds discovery or seeks a protective order based on privilege or work product, she must claim the protection expressly and describe the materials in detail in a privilege log
Moving for a protective order (discovery)
If responding party thinks a request subjects her to annoyance, embarrassment, undue burden or expense–party must certify she tried in good faith to resolve the issue w/out court involvement
-court may deny, limit, or allow discovery on specified terms
Less than a full response
When a producing party responds, but not fully
-requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, plus costs of bringing the motion
-if the producing party violates the order compelling an answer, the court can enter “merits” sanctions, along w/costs and atty fees for bringing the motion
No response
Merits sanctions
