Civ Pro Flashcards
when is claim compulsory
same transaction or occurrence
how do you get personal jdx
General: resident ∆ or served in state
Specific: minimum contacts and evidence of purposeful availment. Must satisfy traditional notions of FairPlay and substantial justice
How do you get subject matter jdx
federal question
diversity
supplemental
when can you not do supplemental even if you have the same common nucleus of operative fact
diversity: destroys diversity
federal question: state claim substantially predominates or federal claims all dismissed
where can ∆ remove to
anywhere that π could have filed originally
but can’t remove if ∆ already has home state advantage
where is venue proper
I. all ∆s live in same state: any district where a ∆ resides
ii. where substantial part of events occurred
iii. if none of the above, anywhere with jdx over one ∆
what if venue was proper but there’s a better one
court can transfer
what if venue was improper
can transfer or dismiss
when does eerie occur
federal diversity or supplemental claim based on state law
rule for eerie
federal court must apply federal procedural and state substantive
test for if it is substantive
is it outcome determinative
some stuff that is always substantive
SOL, elements of claims or defenses, burden of proof
what conflict of law rules does federal court apply
the state it is in
requirements for class action
- numerosity
- commonality
- typicality
- adequacy
diversity rules for class action
- regular case: one diverse class rep and over 75k
- class action fairness act: at least 100 members, 5million, and any π is diverse from any ∆
how long do you have for service of process
90 days from complaint
methods of service
To ∆,
∆’s place of abode if left with person of suitable age and discretion,
or ∆’s agent
To corporation ∆, office is ok
how long does ∆ have to reply to complaint
21 days or 60 if waives service
what does TRO do
Preserves status quo until court can decide
Good for up to 14 days, then need consent or good cause
when can TRO be issued without notice to ∆
- Immediate and irreparable injury will result
- Movant’s attorney certifies that they tried to give notice
- And gives reason why notice shouldn’t be required
when is preliminary injunction issued
- Π is likely to succeed on the merits
- Π is likely to suffer irreparable harm without it
- Balance of equities is in π’s favor
- Injunction is in public interests
test for motion to dismiss
1) reject all legal conclusions, 2) treat all well pleaded facts as true and see if there’s a viable case
test for motion for judgment on pleadings
if nothing is in dispute
when can you amend
once as of right within 21 days but court should freely give leave
rule for relating back for a claim
relates back to date of original if amendment asserts claim or defense that arose out of same transaction or occurrence
rule for relating back for a new ∆
works if
- New party receives notice within 90 days of original complaint being filed
- ∆ knew or should’ve known about action but for mistake of identity
what does attorney signing warrant for rule 11
Not improper
Warranted by law or nonfrivolous argument for law change
Have or will have evidentiary support
Denials are warranted or reasonably based on belief
what is the safe harbor
have to give attorney 21 days to fix it before filing rule 11 sanctions
how long do you have to appeal
within 30 days of judgment
how long do you have to file renewed judgment as matter of law
within 28 days after judgement (must have already raised it once)
what does interpleader do
Allows person holding property (stakeholder) to force all claimaints into one suit
Federal interpleader rule
o Ps: persons with claims that may expose π to liability can be forced to come together in one suit though they lack common origin and are adverse and independent
o Ds: exposed to similar liability may seek interpleader through cross or counter claim
what is impleader
Defending party can implead nonparty for liability on original claim
Can be asserted any time but need permission if more than 14 days after original answer
Must have original subject matter jdx OR supplemental jdx
how many written interrogatories per party?
how many oral depositions per party?
25 written
10 oral
when is summary judgement granted
No genuine dispute as to any material fact
Court will construe all facts in favor of nonmovant and decide
standard of review for review of trial court’s factual findings
clearly erroneous
standard of review for review of legal rulings
de novo
standard of review for - review of discretionary rulings:
abuse of discretion
elements of claim preclusion (res judicator)
o Valid final judgement on merits
o Same claim
o Same parties
elements of issue preclusion (collateral estoppel)
o Same issue
o Actually litigated
o Valid final judgment
o Issue was essential to judgement
final judgement rule
can only appeal after final judgements
few exceptions:
multiple claims, court says no reason to delay,
injunction,
certification,
bankruptcy
what is a special verdict
Written finding made by jury on each issue of ultimate fact
Then judge determines legal consequence of those facts
what is a general verdict
Normal kind
Jury decides who wins, and damages
what is a general verdict with special interrogatories
Combines both special and general, ensures the jury evaluates each material fact
what if the interrogatory answers are not consistent with general verdict
court can:
Approve a judgement consistent with the answers
Direct jury to reconsider
Order new trial
a temporary restraining order must have
i. reasons why issued
ii. reasonable description of prohibited acts
iii. specific terms
requirements for compulsory joinder of parties
- party must be necessary
- must be PJ over new party
- must be SMJ over new party (can’t destroy diversity)
what if adding new party would destroy diversity (compulsory joinder)
party is indispensable: court has to dismiss
party not indispensable: go ahead without them
what is a necessary party for joinder
- court can’t give full relief without that party
- party might be harmed by not joining
- risk of inconsistent judgement or double liability
factors to determine if party is indispensable for joinder
- extent to which it would prejudice parties not to have them
- extent to which prejudice could be reduced or avoided by protective provisions
- whether judgement rendered would be adequate
- whether plaintiff would have adequate remedy if court dismissed for this
