Civ Pro Flashcards
What are the 3 types of Subject Matter Jurisdiction?
- ) Federal Question
- ) Diversity Jurisdiction
- ) Supplemental Jurisdiction
- ) Removal
What is required for Federal Question Jurisdiction?
The Federal issue must be presented in the Plaintiff’s “well-plead complaint”
A federal defense is not sufficient
What is required for Diversity Jurisdiction?
1.) Diversity - must be complete diversity between the parties
Individuals: domiciled where they are present with intent to remain indefinitely
Corporations: Domiciled where incorporated AND where the principal place of business is located.
2.) Amount in Controversy - Must exceed $75K
Injunctive Relief: can have monetary value assigned
Multiple defendants: can aggregate dollar amounts if jointly liable
What is Supplemental Jurisdiction?
Court may exercise supplemental jurisdiction over additional claims so long as the claims arise out of a common nucleus of operative fact as the original claim
How does Federal Question jdx work within Supplemental Jurisdiction?
- ) Plaintiff can bring state law claims that are related to the federal claim
- ) An additional plaintiff can bring a state law claim against the defendant if related to the original plaintiff’s federal claim
- ) A defendant can bring a cross-claim against another defendant so long as the claim is related to the original plaintiff’s federal claim.
How does Diversity JDX work within Supplemental JDX?
- ) Plaintiff can bring any state law claim related to the basis of the original claim
- ) An additional plaintiff can bring a related state law claim against the defendant so long as the plaintiff does not destroy diversity.
- ) A defendant can bring a cross-claim against another defendant so long as it is related to the original claim.
When do courts have the authority to reject supplemental jurisdiction
- ) The claims are complex and predominate the lawsuit
- ) The federal law claims are dismissed; or
- ) There are any other compelling reasons to decline jdx.
What is Removal?
Plaintiff files in state court and a defendant seeks to remove to federal court
Defendant may remove so long as the federal court can exercise SMJ over the case
Motion for removal must be filed within 30 days of receiving the complaint.
What are the 3 traditional basis for Personal Jurisdiction?
- ) Service while voluntarily present
- ) Domicile
- ) Consent
What do most state statutes allow concerning PJ? (on the exam)
to the extent allowed by the constitution. (Long arm statutes)
What are the 2 requirements for Due Process under a long-arm statute?
- ) minimum contacts
2. ) Fairness (fair play and substantial justice
What is “minimum contacts?
a. ) purposeful availment - reasonably foreseeable to be sued in the state
b. ) relatedness (defendant’s conduct in relation to the action
What is specific jurisdiction? (Under the umbrella of long arm statute due process)
The Action arises out of defendant’s conduct
What is general jurisdiction?
Defendant is essentially at home in the jdx
Where is a corporation at home?
Where incorporated and where its principal place of business is located
Which federal district can the original action be filed in? (For appropriate venue)
- ) Any district in which the defendant resides if all defendants reside in the state where the district is located
- ) Where a substantial part of the events or omissions occurred, or where the property is situated, or
- ) If neither of the above apply, venue is proper in a judicial district where any defendant is subject to PJ.
What is the Transfer of Venue Analysis?
- ) Is there PJ?
- ) Is there SMJ?
- ) Is venue appropriate in the new district?
- ) Is transfer to the new venue in the interest of justice.
What does the Eerie doctrine stand for?
In a diversity case, a federal court applies state SUBSTANTIVE law
What makes a state law Substantive?
- ) A state law that alters the calculation of damages is substantive
- ) A state law regarding a statute of limitations is substantive
- ) A state law that creates evidentiary privileges is substantive.
What is a TRO?
Temporary Restraining Order - a party seeks to maintain the status quo prior to a hearing for a preliminary injuction
What must be shown to obtain a TRO?
- ) Immediate and irreparable injury would occur absent the TRO?
- ) An effort was made to give notice to the opposing side
A Court may grant a TRO without the opposing party present
What must a plaintiff show to get a Preliminary Injunction?
- ) Likely to succeed on the merits
- ) Likely to suffer irreparable harm in absence of injection
- ) Balancing the equities in favors granting; and
- ) Injunction is in the best interests of the public.
Are rules governing service of process substantive or procedural?
Procedural
How do you serve a corporation?
Service may be made on an officer, managing agent, general agent, or agent appointed or authorized by law.
When can a lack of SMJ motion be raised?
Can be raised any time, even on appeal
When can a lack of PJ be raised?
Must be raised at the first opportunity (the first pre-answer motion or, if none, the answer)
When can improper venue motion be raised?
First opportunity
When can an insufficient processionals motion be raised?
First opportunity
When may a failure to state a claim or failure to join a necessary party under Rule 19 be raised?
May be raised in any pleading, in any motion for judgment on the pleadings, or at trial.
What is the Relation Back, Rule 15 Amendment?
Plaintiff may amend its pleading once as a matter of right within 21 days after service on the defendant
Otherwise, a party may seek leave of the court or written consent from opponent.
What must have happened previously for a plaintiff to add a new claim?
- ) The original complaint was timely, AND
2. ) The new claim arises out of the same transaction or occurrence as the original claim
What is needed to add a new defendant?
- ) The claim arose out of the same conduct, transaction, or occurrence
- ) The new defendant received notice of the action within 90 days of the original complaint; and
- ) The new defendant knew or should have known that but-for a mistake, he would have been a party to the original complaint.
What is Rule 11 standing for Filing?
- ) When an attorney (or unrepresented party) submits a pleading, motion, or other signed document, he certifies the documents are filed in good faith
- ) If challenged, he must withdraw or revise the document
- ) May be subject to sanctions for violation of the rule.
What are the Requirements for Compulsory Joinder of Parties?
- ) The party must be necessary
- ) There must be PJ over the new party
- ) There must be SMJ (adding the party cannot destroy diversity)
(If adding the party would ruin diversity, the court must decide whether the party is indispensable (dismiss) or not (proceed without)
When is a party “Necessary?”
- ) Court cannot afford complete relief without the party
- ) There is danger that the party would be harmed without joining, OR
- ) There is a risk of an inconsistent judgment or double liability
What are the Factors to determine whether a new party is indispensable?
- ) Extent to which judgment would prejudice the parties in the person’s absence;
- ) Extent to which prejudice could be reduced or avoided by protective provisions;
- ) Whether a judgment rendered would be adequate; and
- ) Whether the plaintiff would have an adequate remedy if action were dismissed for non-joinder
When can a cross-claim be brought?
Can bring a cross-claim so long as it arises out of the same transaction or occurrence as the plaintiffs original claim.
Must have SMJ over the cross-claim (federal question, diversity, supplemental)
Example: A plaintiff sues two defendants. The issue is whether defendant 1 can sue defendant 2.
What is Impleader?
When a defendant tries to pull a third party back into a lawsuit
What is needed for Impleader?
Impleaded claim must relate to the original claim between the plaintiff and the defendant
Court must have SMJ over the impleded claim
What is Intervention? (Rule 24)
A nonparty is seeking to join the lawsuit
Intervention as of right if?
- ) nonparty has an interest in the subject matter of the action;
- ) The action may affect their interest; or
- ) The nonparty’s interest is not adequately represented by the existing parties
Permissive intervention is allowed if…?
- ) Non party is granted a conditional right under federal statute; or
- ) Nonparty has a claim or defense related to the original cause of action.
What is the Scope of Discovery?
- ) Parties may discover any non-privileged matter that is relevant to a claim or defense
- ) Court may limit discovery if unduly expensive or burdensome
- ) Does not need to be admissible evidence in order to be subject to discovery
- ) A party may not discover privileged information.
What is the Work Product Privilege
It protects materials prepared by a party in anticipation of litigation
What is the Exception(s) to work-product privilege?
a. ) information is not reasonably available by other means
b. ) the party would be substantially prejudiced if not allowed to access the materials.
a party can never discover the mental thoughts and opinions about the case
If the Expert is not called as a witness, is his report discoverable?
Only in EXCEPTIONAL circumstances
Can a physical or mental exam be compelled?
They can be compelled if the party’s mental or physical condition is at issue
Who can be deposed?
- ) a party can depose a party or non-party
- ) To depose nonparty, must serve a subpoena
- ) Can also request that a nonparty produce documents by serving a subpoena duces cecum
What is a Summary Judgment Motion?
Asserts that there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law
Which amendment gives people the right to a jury trial?
The 7th amendment - right to trial by jury when damages exceed $20.
When must a jury trial be demanded?
Must demand jury trial within 14 days after service of last pleading.
When is a Judgment as a matter of law (directed verdict) appropriate?
- ) Motion made by either party at the close of plaintiff’s evidence or the close of all evidence
- ) Granted if no reasonable person could differ as to the outcome.
What is a renewed motion for judgment as a matter of law (JNOV)
1.) Motion for judgment as a matter of law is denied and the issue goes to the jury
The jury deliberates and delivers a verdict.
Renewed motion for judgment as a matter of law asks the court to override the jury’s verdict
Can only renew this motion if it was made earlier.
What are the requirements for appeal?
- ) Generally there must be a final judgment
2. ) Interlocutory appeal allowed after the denial or grant of an injunction
What are the 3 requirements for Claim Preclusion?
- ) The same plaintiff and the same defendant from lawsuit #1
- ) Lawsuit #1 ended in a valid judgment on the merits; AND
- ) Claimant is asserting the same claim as in lawsuit #1
What are the 4 elements for Issue Preclusion?
- ) Same issue was actually litigated
- ) Final valid judgment on the merits
- ) Issue was essential to the judgment, AND
- ) Mutuality (must be fair for new plaintiff to assert same issue).
