Civ Pro Flashcards
Prelim Injunction
1 - likelihood of success on merits
2 - irreperable harm if not injunction
3 - balance of hardships
4 - public policy considerations
Elements of complaint
1 - short and plain statement of grounds for court’s SMJ
2 - short and plain statement of claim establishing entitlement to relief
3 - demand for relief
When can party amend pleading?
As a matter of right:
1 - within 21 days if no responsive pleading is required; OR
2 - if responsive pleading is required, within 21 days of receiving responsive pleading or 12(b) motion, whichever earlier.
A court should freely give leave to amend when justice so requires
Plaintiff can permissive joinder (as a plaintiff or defendants)
1 - same transaction or occurrence; and
2 - common question of law or fact
Permissive Joinder and Diversity Jurisdiction
NO party can be joined when it destroys diversity.
However, AIC can be less than 75K when multiple plaintiff’s against single defendant (yes supp juris). This is because P can join only if it is from the same transaction or occurrence, and therefore supp jurisdiction is appropriate
AIC under 75K NOT satisfied when one plaintiff against multiple defendants (no supp jurisdictions). This is because it is the plaintiff seeking to join the defendants. If a P is seeking supp jurisdiction by adding parties, it must separately meet SMJ requirements.
When must an objection to PJ, Venue, insufficient process or service of process occur?
1 - pre-answer motion, or if no pre-answer motion,
2 - the answer (or an answer amended as a matter of right)
5 bases for in personam jurisdiction, first three general, fourth one specific, not sure about attachment
1 - physical voluntary presence in state (served while in state)
2 - Domicile
3 - Consent (can be via K)
4 - Long-arm statute (specific)
5 - attachment
Compulsory counterclaim
Must be plead if:
1 - arises out of same T/O as plaintiff’s claim
2 - it does not require adding another party over whom the court does not have SMJ
Failure to bring? Claim preclusion
Three types of mandatory disclosures
1 - initial disclosures
2 - expert witness disclosures (90 days before trial)
3 - pre-trial disclosure (30 days before trial) - includes witnesses to testify. depositions and documents to be used.
When must demand for jury trial be made?
Serving the OTHER PARTY Within 14 days of last pleading to which the issue to be tried by the jury (legal issue) was served. Written.
Must also file with court within a reasonable amount of time after service.
Disputes over $20
Default judgement - preclusive effect
Has claim preclusion
No issue preclusion (was not litigated)
When must summons and complaint be served?
Plaintiff must serve defendant within 90 days of complaint being filed
Removal when multiple defendants
All defendants must consent to removal
EXCEPTION: federal question claims, only those defendants against whom the federal question is brought must consent.
have 30 days from receipt of initial pleading
Standard for motion for summary judgment
no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
In other words, no reasonable jury could find for the non-moving party.
Burden of proof on the moving party. Once prima facie, burden to to show existence of genuine issue of fact shifts to nonmoving party.
Must be made within 30 days after the close of discovery (nonmovant given sufficient time to obtain discovery)
12(b)(6) Motion to Dismiss
Should be dismissed if it (1) fails to state a cognizable legal theory that entitles them to relief or (2) fails to allege facts for cognizable claim.
1 - well pleaded facts true (plausible case?)
2 - disregard legal conclusions
3 - resolve all doubts in favor of plaintiff
When can a motion for judgment as a matter of law be made?
Before it is submitted to jury (but after nonmovant has presented its case), but after the trial has begun.
If you want to file a renewed motion for judgment as a matter of law, you must file a motion for judgment as a matter of law.
Claim preclusion (res judicata) elements
1 - valid and final judgment on the merits
2 - sufficiently identical causes of action (if they arise out of same transaction or occurrence); and
3 - sufficiently identical parties
Corporation domicile
1 - ALL states in which it is incorporated
2 - THE state in which it has its principal place of business (only one)
Well-pleaded complaint and federal question jurisdiction
Only will consider the claims made in plaintiff’s complaint, not anticipated defenses, answers, or counter-claims
Aggregation of Claims
One plaintiff, one defendant - aggregate them all
One plaintiff, multiple defendants - NO aggregation (unless jointly liable)
Multiple plaintiffs, one defendant - NO aggregation, unless the plaintiff’s are asserting an undivided interest. but supplemental jurisdiction over plaintiff’s claims probably.
federal question scope
Express or implied under statute; OR
Federal issue (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress
Counterclaims and AIC requirements
Permissive Counterclaims - must separately meet the AIC
Compulsory Counterclaims - need not meet the AIC
Supplemental Jurisdiction and Diversity
Counterclaims - cannot bring in party that destroys diversity. However, compulsory need not meet AIC, but permissive must meet AIC
Joinder - addition of plaintiff cannot violate diversity (but not required to satisfy AIC)
Cross-claims - if arises out of same T/O, then no need to meet AIC or diversity
Removal based on Diversity jurisdiction
D cannot remove if any of the Ds is a resident of the state in which the action was filed.
Cannot be removed more than 1 year after action commenced
Documents a court can consider for - Motion to Dismiss for failure to state a claim vs. Motion for summary judgment
MTD - limited to content of pleadings (complaint and attachments to complaint) and matters of public record
MSJ - sworn materials in the record - depositions, affidavits, etc.
When is supplemental jurisdiction based on diversity NOT allowed
If supplemental claim:
1 - destroys diversity
2 - is not over 75K and made (1) by plaintiff, (2) against parties added through joinder, interpleader, intervention, or compulsory joinder
Class action based on diversity jurisdiction
Only the named representatives need to be diverse.
At least one P must be over 75K AIC
What can a judge NOT do in granting a judgment as a matter of law (or MSJ)
Not evaluate the weight of the evidence
Standard is whether there is legally sufficient evidence to support the verdict.
Appellate Standards of Review
- Review of a trial court’s factual findings—clearly erroneous
- Review of legal rulings—de novo
- Review of discretionary rulings (evidentiary, injunctions)—abuse of discretion
- Review of a jury verdict—varies among jurisdictions, most strict is if there is no evidence to support jury verdict
When is removal by defendant prohibited?
In (1) an action based on diversity and (2) the defendant is a resident of the state in which the case was filed.
For collateral estoppel to apply, who needs to be a party to the first action?
It is the party against whom the preclusion is being sought (usually the defendant).
The defendant.
The plaintiff can use offensive collateral estoppel even if not a party to a prior action.
domicile for individuals
where they reside and intend to remain indefinitely
Due Process Requirements for Personal Jurisdiction
MINIMUM CONTACTS:
Purposeful Availment - reasonably foreseeable?
Relatedness - relation with contacts and suit (specific vs. general jurisdiction)
FAIRNESS: does not offend traditional notions of fair play and substantial justice.
-interest of forum state in deciding matter
-burden on defendant
-efficiency
-shared interests of the state
When is venue appropriate
1 - A district in which any defendant resides, if every defendant lives in that state
2 - where a substantial part of the events giving rise to the claim
3 - if neither of the above, any district where defendant is subject to PJ
Relation back (new claim and new parties)
New Claim
If original claim was timely filed AND the facts giving rise to the new claim were of the same transaction or occurrence, then relate back
New parties
same transaction or occurrence AND defendant received notice of the claim within 90 days of the original complaint being filed AND defendant knew or should have known that it could be brought against them but for a mistake
When is a party necessary?
1 - Court cannot afford complete relief without party
2- Danger that party would be harmed if not joined
3 - risk of inconsistent judgment
Indispensable is kind of same factors, but focus is on extent and whether P can be given complete relief.
A joint tortfeasor is NOT a necessary party
When is a party indispensable?
1) Extent to which judgment would prejudice the parties in the person’s absence;
2) Extent to which prejudice could be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether the plaintiff would have an adequate remedy if action were dismissed for
nonjoinder
Work-Product Privilege
protects material prepared in anticipation of litigation
NOT discoverable UNLESS
1- information is not reasonably available by other means; AND
2- the other party would be substantially prejudiced if not able to get.
A party can NEVER discover the mental thoughts and opinions about the case
Duty to preserve electronic information
Once there is anticipation of litigation, must make reasonable efforts to preserve. If violated:
- instruct jury that they can presume that info is unfavorable
-they can even dismiss the case
Elements for Collateral Estoppel
1) Same issue was actually litigated;
2) Final valid judgment on the merits;
3) Issue was essential to the judgment; and
4) The party against whom issue preclusion is asserted must have been a party in the prior
lawsuit or represented in that lawsuit (a successor-in-interest)—must be fair for new
plaintiff to assert same issue (prior law required a mutuality of parties)
In determining claim preclusive effect, use law of state in which original suit was decided.
Bulge Rule
PJ, IF:
1 - added through impleader (third party practice) or required joinder
2 - served within 100 miles of court
Special venue rule for nonresident of the US
ANY judicial district
When does a losing party need to file a renewed motion for JMOL?
Within 28 days of entry of judgment
Common issues that are procedural and substantive (Erie)
Procedural - jury size (anything in FRCP)
Substantive - Statute of limitations, burden of proof, conflict of law, affirmative defenses
Class Action Requirements
Numerosity – the class is so numerous that joining all the members as named plaintiffs is impracticable (usually met when there are over 40 members)
Commonality – the class shares common questions of law or fact
Typicality – the named plaintiffs’ claims are typical of the claims of the class
Adequacy – the named plaintiffs will fairly and adequately protect the interests of the class
Class Action Fairness Act (CAFA)
1 - 100+ plaintiffs
2 - minimal diversity
3 - over $5 million when the claims are aggregated
Is the failure to deny allegations as to amount of damages deemed an admission?
NO
Involuntary vs. voluntary dismissal
Involuntary dismissal is an adjudication on the merits, meaning it is dismissal with prejudice.
voluntary dismissal - the first one is usually without prejudice (unless otherwise stated). The second one, however, will be with prejudice (“two-dismissal” rule), even if first is in state court.
How many preemptory challenges?
Three
unlimited opportunities to strike with cause
When is plaintiff required to reply to defendant’s answer?
Only in the rare circumstances that a court orders it to do so.
If it does not, then any answer to plaintiff’s complaint will be deemed denied.
If court does order, then a plaintiff’s failure to reply constitutes admission.
When is a judgment appealable?
If it is a final judgment.
With multiple parties, if judgment is entered against one party, it will only be immediately appealable if the court determines that there is no just reason for delay.
Generally, must be filed within 30 days of entry of judgment.
Impleader
Defendant is allowed to implead a third party if it might be liable to all or part of the claim by plaintiff against it,
The plaintiff can then assert a third-party claim against the third-party defendant if (1) it rises out of the same transaction or occurrence, and (2) it independently satisfies SMJ.
Must be made within 14 days of original answer OR after this deadline if it obtains leave of court to do so.
How to satisfy service of process requirements?
Individual -
- deliver personally
- deliver to defendant’s dwelling and leave with a person of suitable age and discretion.
Corporation -
-agent or officer
OR, by following service of process rules in state in which court sits, or state where served (regardless of type of SMJ)
Foreign Country? any manner reasonably calculated to give notice, but not personally if corporation.
CONSTITUTIONAL REQUIREMENT - reasonably calculate to give notice and allow opportunity to reject.
Appealability of orders denying class certification
Petition to appeal must be filed within 14 days and the appellate court then has discretion whether to permit the appeal.
The district court’s proceedings are stayed pending appeal ONLY IF ordered by the district court or appellate court.
Eerie - if it is unclear whether law is procedural or substantive, what is the analysis?
Ask if federal law directly addresses the issue? (is there a conflict? If so, then we proceed, if not, then we apply both federal and state law)
If yes, apply federal law if it is arguably procedural and does not affect substantive right.
If no, apply state law if state law is outcome determinative (failure to apply would result in forum shopping or inequitable administration of laws) and there is no countervailing federal policy. If not, apply federal common law.
When can clerical mistakes be corrected?
A clerical mistake can be corrected on the court’s own initiative or by party’s motion only BEFORE appeal is docketed.
Once appeal is docketed, district court must obtain leave of appellate court before correcting.
Change of Venue Rule
(1) if original venue is proper
- transfer to another court is proper if venue is allowed in another court originally or other parties consent
-DJ: apply law of transferor state (unless valid forum selection clause)
-FQ: do not apply transferor law
(2) if original venue is improper
-either dismiss case or transfer case to court where venue is proper
-DJ: apply law of transferee state
-FQ: do not apply transferor law
Effect of Forum-Selection Clause
Forum selection clauses should be upheld in all but the most exceptional circumstances.
Meaning: transferor seeking change in venue to forum selection clause should probably win.
Meaning: if transfer of venue based on forum selection clause, then transferee court law should apply (exception to general rule)
Service on corporations
must be made to officer, managing officer, or agent authorized by law to receive service
Intervention
As of right:
-have an interest
-action may affect their interest
-interest not adequately represented
Permissive:
-conditional right under statute; OR
-claim or defense related to original action
Remittur and Additur
Additur is not premitted in federal court, only remittur
General jury verdict with answers
If verdict is inconsistent with answers, judge can order new trial, re-instruct jury, or enter judgment in accordance with answers
If verdict and answers are inconsistent with each other, judge can order new trial or re-instruct jury.
Federal Torts Claim Act (venue)
Venue is proper (1) where the plaintiff resides or (2) where act or omission complained of occurred
Waiver of service modified timelines
Give D 30 days to respond to waiver request
If so, D need not file answer until 60 days after request was sent
Domicile of Legal Representative
Same state as the one being represented - testator, minor, incompetent
When should a motion for new trial be granted?
to prevent miscarriage of justice - if new evidence is discovered that existed at time of trial but was excusably overlooked.
Types of Class Action
Risk of Prejudice - separate actions create risk (notice optional)
Final Equitable Relief - seeking injunctive relief (notice optional)
Common legal/factual question - common question predominates individual questions (notice required)
When must a party respond to an amended pleading?
The later of the following:
-14 days form service of amended pleading; OR
-21 days after service of original pleading
11(b) Certification
Pleading, motion, or other document signed by attorney certifying that, based on knowledge, information, or belief, after reasonable inquiry into facts:
-doc presented with proper purpose
-claims, defenses, and legal contentions are supported by law or nonfrivolous argument for changing the law
-facts have or will have evidentiary support AND
-fact denials are warranted by evidence or lack of knowledge/information
Safe harbor of 21 days if other party moves for these sanctions
Plaintiffs Can’t File Frivolously (PCFF)
What is the court’s role concerning jury instructions?
Prior to closing argument, the court must inform parties of instructions it intends to give
Parties may object on record and outside of jury’s hearing
Is an insurance agreement discoverable?
Yes, in fact it is subject to mandatory disclosure.
This is different than the collateral source rule, because that is an evidentiary rule during trial, not for discovery.
Standard for obtaining relief from judgment
within 1 year: mistake, surprise, neglect,
newly discovered evidence that existed at time of trial
fraud
Within reasonable time: No jurisdiction, judgment satisfied or discharged
11(b) Sanctions
Limited to what will deter the repetition of the misconduct
Generally, will be against ATTORNEY, if it is violation of legal contentions not warranted by law, not against PARTY
Stateless person
If a person is a non-citizen present in the US, or a US citizen domiciled in a foreign country, these are stateless persons and diversity jurisdiction is NOT allowed.
For the purposes of venue, where does a defendant “reside”?
Individual - same as domicile for PJ
Entity - any judicial district in which the D is subject to the court’s PJ
When can a party request for polling of the jurors?
After the jury returns a verdict but before the jury is dismissed,
a court MUST poll the jurors individually if a party requests.
What happens to the supplemental claims when the original anchoring claim is dismissed?
The court has discretion (may) to decline to hear the supplemental claim. meaning they can still hear the supplemental claim.
FRCP jury requirements
Must begin with at least 6 and no more than 12 jurors.
Verdict must be unanimous and rendered by at least 6 jurors UNLESS parties consent otherwise.
Interrogatories
Up to 25 - only on a party
respond within 30 days of being served (or 30 days after initial planning conference)
Can either answer, or specify business records from which the answer can be derived IF:
1- burden is substantially the same for requesting party
2 - responding party provides opportunity to examine and copy records.
Venue and Removal
When removal is exercised, it is to the district court of the district where the state action is pending. Venue is proper, even if it would not be proper originally. Removal overrides venue.
When are expert reports from expert not testifying at trial discoverable?
Upon a showing of exceptional circumstances that party cannot obtain that information elsewhere.
Temporary Restraining Order
Must show:
(1) immediate and irreparable injury without TRO
(2) attorney certified efforts to give notice to the other side (or why notice should not be required)
Supplemental Jurisdiction discretionary factors
(i) raises a novel or complex issue of state law;
(ii) the supplemental claim substantially predominates over the claims within original federal jurisdiction;
(iii) all of the claims within the court’s original jurisdiction have been dismissed; or
(iv) in exceptional circumstances
