Civ Pro Flashcards
When does Merger occur? (Civ Pro)
Merger occurs when the plaintiff wins; her cause of action is said to “merge” into the judgment such that she cannot relitigate the cause of action (or claim) later.
When does a court have supplemental jx over a third party claim?
When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.
Can a court exercise supplemental jx over a third party where invoked by D, and D and third party are from same state?
Yes.
Claims by P against an impleaded party may not use supplemental jurisdiction to circumvent the diversity statute. However, supplemental jurisdiction is available to D against a third-party. This would be true even if they were from the same state, so long as the claim was a true indemnity claim and they are derived from the same common nucleus of operative fact.
How many days does a D have to remove a case to federal court? What if it is based on diversity jx?
Removal must be sought within 30 days after receipt by or service on that defendant of the initial pleading or summons, or, if the case is not initially removable, within 30 days of the case becoming removable.
Additionally, removal based on diversity jurisdiction cannot be had if more than one year has passed since the suit was filed unless bad faith on the part of the plaintiff can be shown.
Can a party to a federal action effect proper service if made pursuant to the law of the state in which the federal district court is located?
Yes.
Federal Rule 4 provides that summons and complaint may be served pursuant to the law of the state in which the district court is located, though it must be reasonably calculated to give the defendant notice of the action (IE - constitutional).
What is the Bulge Rule”?
Creates personal jurisdiction over third-party defendants if served within a 100-mile radius of the federal court (assuming jurisdiction won’t offend “traditional notions of fair play and substantial justice.”)
Are the identities of people with knowledge of discoverable matters protected by work product?
No. In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, including the identity of individuals with knowledge of any discoverable matter. FRCP state that the identities of people with knowledge of discoverable matters are discoverable; thus, a list with identities of such people is not considered work product.
Is a party entitled to discovery of a physician’s observations, opinions and treatment information?
Yes, IF the physician developed opinions about the injuries for purposes other than litigation or trial. Otherwise, such information would be barred from discovery under the work product doctrine.
If an opposing attorney is making unduly invasive and improper inquiries of a witness at a deposition–although within the scope of discovery plan–what should the witness’ attorney do?
The witness’s attorney should instruct the client not to answer the questions and move for a protective order.
A person from whom discovery is sought by means of a deposition may move for a protective order in the court in the district where the deposition is taken. If the motion for a protective order is granted, the court may require the party opposing the motion to pay the moving party’s reasonable expenses, including attorney’s fees.
Does complete diversity exist where defendant corporations are citizens of the same state? (whether incorporated or PPB)
No. A corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business.
EG - one defendant business is incorporated in State C and has its principal place of business in State A, so it is a citizen of both for purposes of diversity jurisdiction. The plaintiff business is incorporated in State B and has its principal place of business in State C, so it likewise is a citizen of both states. Thus, on the plaintiff side is a citizen of State C and State B, and on the defendant side are citizens of State A and State C. The State C connection means that complete diversity does not exist.
Does a court have general personal jurisdiction over a defendant in the state where they are domociled?
Yes. A state has general personal jurisdiction over a defendant where they are domiciled, even if the claim arose from events and conduct outside of the State and are unrelated to his State activities.
For a court to have personal jurisdiction over a defendant, there must be a statute that authorizes jurisdiction, and the exercise of personal jurisdiction must be constitutional, meaning that the defendant must have purposeful contacts with the forum state such that it would be fair and reasonable to exercise personal jurisdiction over him.
Personal jurisdiction may be “specific,” meaning that the court has personal jurisdiction over the defendant for the complained-of cause of action, or it may be “general,” meaning that the court has personal jurisdiction over the defendant for all causes of action.
Where is venue proper if all of the defendants reside in different states?
Venue is proper only in the State where the events giving rise to the claim occurred. If D’s reside in same state, venue would also be proper in that state.
Is service proper on the defendant’s butler who resides at D’s mansion while D is away for the season?
Yes. Federal Rule of Civil Procedure 4 provides that service may be made on an individual in the United States by leaving a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.
Is a third party D’s counterclaim compulsory or permissive? What about the OG D?
Permissive. A third-party defendant MAY assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim. Whereas the OG D’s counterclaim WOULD be compulsory if it comes from same transaction or occurrence.
May a third party defendant be brought in to an action by defendant claiming they are not liable, rather the 3PD is?
No. Third-party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third-party plaintiff’s own liability to the plaintiff.
EG - Where a D is not seeking to recover from the 3PD any portion of the D’s liability to P, he cannot assert a third-party claim. Where D IS seeking to recover for his own liability, he may indemnify a 3PD for the full amount or seek contribution for a partial amount.
