Civ Pro Flashcards
PJ Rule Statement
State courts of general jurisdiction may exercise
personal jurisdiction over nonresident defendants to the extent authorized by both the state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.”
“The Due Process Clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice.”
3 Prongs:
1. Contact: Defendant must have purposefully availed himself to the forum and it must have been foreseeable.
A. Purposeful Availment: Contact was based on D’s voluntary act
B. Foreseeability: Is it foreseeable that Defendant could be sued in the Forum?
- Relatedness: The plaintiffs claim must arise from or relate to D’s contact with the forum
- Fairness: The court will consider:
- Burden on defendant and witness
- States Interest
- Plaintiff Interest
SMJ Rule Statements
For there to be Federal Question Jurisdiction, the plaintiffs claim must “arise under” federal law.
Test: The pleader must follow the “Well-Pleaded Complaint” Rule: It is not enough that some federal issue is raised by the complaint, but the Plaintiff’s claim itself must “arise under” federal law.
For Diversity Jurisdiction:
1. The case is either (a) between citizens of different U.S. states(diversity) or (b) between a citizen of a U.S. state and a citizen of a foreign country(alienage); and
2. The Amount in Controversy exceeds $75,000
How To Change Domicile: It takes two things:
1. Physical presence in the new domicile; and
2. The intent to make that place your home for the indefinite future.
Citizenship of a Corporation: A corporation is a citizen of any state in which it is:
1. Incorporated; and
2. Of the one state or country which it has its principal place of business.
Principal Place of Business “Nerve Center” Test: The state which the corporations managers direct, coordinate, and control business activities. This is usually the site of the corporate headquarters.
Corporations may be incorporated in multiple states but may only have one principal place of business.
Citizenship of Unincorporated Association (Partnership, LLC., Etc.): An unincorporated association takes on the citizenships of all of its member’s.
If its a limited partnership, you include the citizenships of general and limited partners.
Citizenship of Decedents, Minors, and Incompetents: Decedents, minors, and incompetents must sue or be sued through a representative. The citizenship of the representative is irrelevant, you use the decedents, minor, or incompetent persons citizenship.
Class Actions: The citizenship of the named representatives is used.
Supplemental Jurisdiction
Supplemental jurisdiction gets claims into courts while Diversity and FQ get cases into court.
The “Common Nucleus” Test: The claim that we want to get into federal court must share a “common nucleus of operative fact” with the claim that satisfied federal SMJ.
Same Transaction or Occurrence Test: This test is always met when the claim arises from the same transaction or occurrence(“T/O”) as the underlying case.
Limitations:
Rule: In diversity cases, claims by plaintiffs generally cannot invoke supplemental jurisdiction.
Exception: Applies when there is multiple Plaintiffs, and the claim by one of them does not meet the AIC.
Rule: Even if the requirements for supplemental jurisdiction are met, the court has discretion to decline it.
It can do so if complex or or state law issues would predominate in the case
It can also do so if the claim on which federal SMJ is based is dismissed early in the case.
Venue
Venue is proper in a district where
1. Any defendant resides if all defendants reside in the same state,
2. In a district where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject to the action is situated.
Human: A human “resides” in the federal district where he is domiciled
Business: Such as a corporation or unincorporated association, resides in all districts where it is subject to PJ for the case.
Transfer Of Venue Two Ways:
1. If the original venue is a proper venue, that court can order transfer based on the convenience of the parties and witnesses and in the interests of justice.
Burden is on the person seeking transfer (usually D)
“Center of Gravity” Test: The court will consider both public and private factors showing that the court is the center of gravity for the case
Public: The court will consider things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in local court.
Private: The court considers convenience.
- If the original district is an improper venue, the court may transfer in the interest of justice or dismiss.
Usually the court will transfer if possible
The transferee applies its own choice of law rules.
Removal
Generally an action originally filed in state court may be removed by defendant when the case could have been filed in federal court
The defendant removes the case to the federal court “embracing” the state court where the case was filed.
Exceptions: There are two limitations to removing a case based solely on diversity of citizenship:
1. “In-State Defendant” Rule: The case should not be removed if any D is a citizen of the forum state.
2. The case should not be removed more than one year after the case was filed in state court.
- One Year Limitation: A diversity case with an in-state defendant or with a non-diverse defendant can become removable later if the the claim against the in-state defendant is voluntarily dismissed from the case.
Timing: The D must remove no later than 30 days after service(not filing) of the first paper that shows the case is removable.
All Defendants who have been served with process must join in removal.
Remand: If the plaintiff thinks the case should not have been removed, he moves to remand to state court
Test: If the motion to remand is based on a reason other than lack of SMJ, she must move to remand no later than 30 days of filing the notice of removal.
If removal was improper because the federal court lacked SMJ there is no time limit on ordering remand.
Eerie Flow Chart
Approach an Eerie question in this order:
- Supremacy Clause: Is there some federal law on point that directly conflicts with state law? If so, apply the federal law, as long as its valid.
- If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive”
There are five issues that are clearly “substantive and the federal court must apply state law to these issues: - Conflicts of law rules
- Elements of a claim or defense
- Statue of limitations
- The standard for granting a new trial because the jury’s damages award was excessive of inadequate
- If theres is no federal law on point and the issue is not one of the four just listed above, the judge must determine whether the issue is substantive.
The law consists of a few factors to weigh: - Outcome determinative: Would applying or ignoring state rule affect outcome of case? If so apply state law
- Balance of Interests: Does either the federal or state system have strong interest in having its rule applied? The one with the greater interest should be applied
- Avoid forum shopping: If the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, apply state law
Notice/Service of Process
Any person who is at least 18 years old and not a party to the action must serve process.
If the D is within the U.S., service must take place within 90 days of filing the complaint
Service can be delivered by:
1. Personal Service: Process is given to defendant personally anywhere
- Substituted Services: Means serving a substitute for D. Substituted services can be done only:
I. At the defendants usual place of abode
II. With someone of suitable age and discretion
III. Who resides there
In federal court, substituted service may be used even if personal service is possible. - Service on Agent: Process can be delivered to D’s agent if receiving service is in the scope of agency
- State Law Methods: In addition, methods for service process that are permitted by the law of the state: 1. Where the federal court sits or 2. Where service is made are permitted.
Special Methods:
Service On A Business or Organization: They may only be served by
1. Delivering to an officer or a general agent a copy of the summons and or the complaint, or
2. Using a method permitted By The State: 1. Where the federal court sit or 2. Where services is to be made.
On A Minor or Incompetent Person: Service on a minor or incompetent person may only be made by a method permitted by the law of the state in which service is to be made.
On Parties In A Foreign Country: A method allowed by international agreement may be used
Pleadings Requirement’s
Rule: The complaint must contain:
1. A Short and plain statement of the claim showing the plaintiff is entitled to relief; and
2. . A demand for relief sought
3. A statement of grounds of subject matter jurisdiction
Special Pleading Requirements: Fraud, mistake, and special damages must be pleaded with particularity or specificity
Rule 12 Pre-Answer Motions/Answer
There are 7 Rule 12(b) pre-answer motions:
Waivable Defenses: Some Rule 12(b) defenses are waived if not put in the first Rule 12 response(answer or motion): 3 P’s and a V
1. A lack of PJ
2. Improper Venue
3. Improper Process; and
4. Improper Service of Process
Unwaivable Defense: Some defenses under Rule 12(b) are not waived even if they are not included in the first response:
1. Failure to State a Claim (Not Waived Until Trial)
2. Failure To Join A Party (Not Waived Until Trial)
3. Lack of Subject Matter Jurisdiction (May Be Raised Anytime)
If D is denied a rule 12 motion, the D must serve his answer no later than 14 days after notice of the denial.
Two Additional Rule 12 Motions
1. Rule 12(e) motion for more definite statement: Used when the complaint is so vague or ambiguous the D simply cannot respond; must make this motion before answering.
2. Rule 12(f) motion to strike: Asks the court to remove redundant or immaterial things from a pleading
Answer: An answer is a pleading
The defendant does two things in an answer:
1. Respond to allegations in the complaint
In responding to the complaint the D may:
Admit some or all allegations
Deny some or all allegations; and
State that he has insufficient knowledge to admit or deny some or all of the allegations. (This has the effect of denial)
- Raise affirmative defenses
Affirmative defenses inject a new fact in the case that would allow the defendant to win.
Classic affirmative defenses are: Rule 12(b) defenses, statue of frauds, statue of limitations, res judicata, and self-defense.
Amending Pleadings Rules
Plaintiff: The plaintiff has a right to amend his complaint once as of course no later than 21 days after D serves his first rule 12 response.
Defendant: The defendant has a right to amend his answer once as of course no later than 21 days of serving it.
-If the defendants first response was answer where he forgot to raise waivable 12(b) defenses, he has a right to amend his answer to include the waivable defenses and affirmative defenses.
Once Right To Amend Period Expires: The amending party must seek leave of the court.
“Relation Back” Amendment To Join a Claim Not Originally Asserted(After SOL Has Run): An amended pleading “relates back” if the pleading concerns the same conduct, transaction, or occurrence, as the original pleading.
Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid the SOL problem.
Relation Back Amendment To Change Defendant: The amendment will relate back if:
1. The amendment concerns the same conduct, transaction, or occurrence as the original;
2. The defendant had such knowledge of the case such that he will be able to avoid prejudice; and
3. The defendant knew or should have known that, but for a mistake, she would have been named originally.
Rule 11/Sanctions
Rule 11 Signature Requirment: Applies to all papers except discovery
When the lawyers signs documents she certifies that to the best of her knowledge and belief: After reasonable inquiry:
1. The paper is not for and improper purpose
2. The legal contentions are warranted by law or a non frivolous argument for a law change; and
3. The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.
Sanctions: Before imposing a sanction the court must give the sanctioned party an opportunity to be heard.
Types of Sanctions:
1. Non-monetary sanctions (Professionalism classes)
2. Monetary Sanction (Damages to court)
Safe Harbor: A party that violates rule 11, has 21 days in which to fix the problem and avoid sanctions, before the opposing party may file a motion for sanctions
Joinder
Two requirements for joinder:
1. Joinder must be allowed by the Federal Rules; and
2. There must be SMJ over the case
Claim Joinder:
Plaintiff: May join any additional claim he has against that adverse party- even if the additional claim is unrelated
Multiple Plaintiffs or Multiple Defendants: Claims by multiple Plaintiffs or against multiple defendants must:
1. Arise from the same transaction or occurrence; and
2. Raise at lease one common question of law or fact
There are two types of counterclaims:
1. Compulsory
One that arises from the same T/O as the plaintiffs claim
Defendant must file a compulsory counterclaim in pending trial or it is waived unless it was already filed in another case.
2. Permissive
Does not arise from the same T/O as the plaintiffs claim.
Party is not required to file it in pending case and may bring it in separate case.
A crossclaim is against a coparty.
Rule: Must arise from the same T/O as the underlying action.
Not compulsory, may be brought in separate case.
Necessary and Indispensable Parties :
If the court forces a nonparty(absentee) to join in the case, you must ask three questions:
1. Is the absentee necessary?
A. Necessary: Without the absentee, the court cannot accord complete relief among the existing parties; or
B. The absentee’s interest may be harmed if he is not joined(Most Common); or
C. The absentee claims an interest that subjects a party (Usually D) to a risk of multiple obligations.
2. If the absentee is necessary, can the absentee be joined? (SMJ/PJ)
3. If the absentee can’t be joined, can the case proceed anyway?
What is the actual likelihood of harm to the absentee?; and
Can the court shape relief to avoid that harm to the absentee?
Impleader: A claim where a defending party(Usually D) is bringing in a new party.
The party bringing the claim is called a third-party plaintiff and the new party is called the third party defendant
An impleader claim is used to shift the liability of the defendant to the third party defendant.
Thus, if the defendant is found liable to plaintiff he will try to get the TPD to pay all or part of his own liability
An impleader claim is permissive
To implead a third party D must:
1. File a third-party complaint naming the TPD; and
2. Have that complaint formally served on the TPD.
There is a right to implead within 14 days of serving the answer, after that court permission is needed.
Once TBD is joined: Plaintiff may assert claims against TPD and TPD may assert claims against P that arise out of the same T/O as the underlying case.
Intervention: A nonparty absentee uses intervention to bring himself into the case. Two Types:
1. “Of Right” Intervention: Occurs when the absentee’s interest may be harmed if he is not joined, and that interest is not adequately represented by the current parties.
2. Permissive Intervention: Occurs if the absentee claim or defense and the pending case have at least one common question of law or fact.
Interpleader:
Applies if separate actions might result in double liability against a stakeholder
Rule: An interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it.
Test: There are two interpleader procedures in federal courts:
1. Rule 22 Interpleader: Requires (1) complete diversity between the state holder and all adverse claimants and in excess’s of $75,000 in issue or (2) a federal question claim.
2. Statutory Interpleader: Requires only diversity between any two contending claimants and $500 be in issue.
Class Actions: To qualify for a class action, all four of the following must be demonstrated:
1. Numerosity- There are too many class members for practicable joinder
2. Commonality- There must be some issue in common to all class members, so resolution of that idea will generate answer for everybody in one stroke
3. Typicality- The class rep’s claims are typical of the claims of the class
4. Adequate Representative: The class rep will fairly and adequately represent the class.
After satisfying these four requirements, the action must still fall into one of three types of class actions:
1. Type 1: Prejudice: For Type 1 class actions, class treatment is necessary to avoid harm(prejudice) either to class members or to the non-class party
2. Type 2: Injunctive or Declaratory Relief: A type 2 action seeks an injunction or declaratory judgement because the defendant treated the class members alike. No damages may be sought in Type 2,
3. Type 3: Common Question or Damages: For Type 3, (1) common questions must predominate over individual questions; and (2) the class acton is a superior method to handle the dispute. Often used for mass torts.
Discovery
Within 14 days of the Rule26(f) conference, each party must disclose certain information:
- Identities of persons with discoverable information: The name, telephone numbers, and addresses of persons with discoverable information, who the party may use to support her claims or defenses, must be disclosed as an initial disclosure.
- Documents and things that the party may use to support her claims or defenses must be disclosed as an initial disclosure. This includes photos, records, videos, and electronically stored information.
These must be in the party’s control and if they are not then they need not be disclosed. - Anyone claiming monetary relief must provide a computation supported by documents or ESI of the amount sought as an initial disclosure
- Insurance Coverage: The parties must disclose insurance that might cover all or part of the the judgement in the case even though the existence of the insurance probably would not be admissible at trial.
Consulting Witness: If a party hires an expert to help prepare for a case but does not intend to testify at trial, this is a consulting witness and not an expert witness
Facts and opinions by consulting experts are generally not discoverable absent “exceptional circumstances”.
Expert Witness: As to an expert witness “who may be used at trial”, each party must generally disclose to the other parties (1) the identity of EW and (2) a written report prepared by the EW. The written report must include:
1. Opinions that the EW will express;
2. The bases for the opinions;
3. The facts used to form the opinions
4. The EWs qualifications; and
5. How much the EW is getting paid
A court order is required to compel a party to submit to medical exam. Test: The requesting party must show:
1. That the persons health is in actual controversy and
2. Good cause
The requesting party chooses the licensed medical professional to perform the exam
Depositions:
A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation.
In a deposition a person gives live testimony in response to questions by counsel.
Usually oral but can be written
Deponent must be under oath, and the deposition will be recorded by sound or video so that a transcript may be made.
Both parties and nonparties may be deposed.
Distance Limit On Nonparty: The farthest a nonparty can be required to travel is 100 miles from where the nonparty resides or is employed.
Interrogatories:
Written question to be answered under oath
Sent only to parties, never nonparties
Maximum number is 25 including subparts
Must be answered within 30 days from their service
A party must answer based upon information reasonably available
Contention Interrogatories: Interrogatories that inquire about legal contentions, are permitted.
Request To Produce:
A request to produce asks a party to make available for review and copying documents and things, including electronically stored information or to permit entry on designated property to inspect, measure, etc.
Party must respond to request in writing within 30 days of service
Request for Admission:
A written request that someone admit certain matters
The responding party must respond in writing within 30 days of service, either denying or objecting.
If the party fails to deny a proper request, the matter is deemed admitted.
Scope of Discovery: A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case.
Work Product
Work Product: Material prepared in anticipation of litigation is protected.
Qualified Work Product: Work product may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way.
Opinion Work Product: Consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.
Inadvertent Disclosure: If a party inadvertently produces privileged or protected material, she should notify the other party promptly. The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.
Motion To Dismiss/Summary Judgement/JMOL/New Trial
Motion to Dismiss for Failure to State a Claim 12(b)(6) : Must be before defendant has answered
Rule: A defense asserting that even if all the factual allegations in a complaint are true, they are insufficient to establish a cause of action and the case should therefore be dismissed.
If the answer is no, Plaintiff has not stated a plausible claim and the the claim will dismissed.
Judge might allow P to amend complaint
Judgement on the Pleadings: A party may file a motion for judgment on the pleadings on the basis that no answer has been filed, or that the pleadings disclose that there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law.
Summary Judgement: The party moving for summary judgement must show that:
1. There is no genuine dispute of material facts; and
2. The party is entitled to judgement as a matter of law
Timing: A party can move for summary judgement no later than 30 days after the close of discovery
The moving party must produce evidence to show there is no genuine issue of material fact. The burden then shifts to the nonmoving party, which must then produce evidence to show that there is a genuine issue of material fact for trial. The motion is looked at in the light most favorable to the nonmoving party.
Motion for Judgement as a Matter of Law(JMOL): If judge grants JMOL, the case will not go to the jury- the judge grants the motion and enters the judgement. The motion is based upon evidence.
Test: JMOL is appropriate when a reasonable jury would have no evidentiary basis to find for the other party
- May be made anytime before it is submitted to the Jury
Renewed Motion for Judgement as a Matter of Law(RJMOL): Same as JMOL but after trial
If granted court enters judgement for the party that lost the jury verdict.
Timing: Must be made within 28 days after the entry of judgement.
Prerequisite: The party must have moved for JMOL at the proper time in trial. Not doing so waives RJMOL. The RJMOL must be based upon the same grounds as the JMOL.
Motion For New Trial: A new trial can be granted on any non-harmless error that makes the judge think there should be a do-over.
Timing: A party must move for new trial within 28 days of the judgement(Same as RJMOL)
New trial is less drastic than RJMOL as it just starts the case over, while RJMOL takes the verdict from on party and gives it to the other
Remittitur: The court offers the Plaintiff a choice, remit part of the damages award or go through a new trial.
Court playing hardball with plaintiff
Occurs if the damages figure “shocks the conscience”
Court cant simply lower damages due to the Seventh Amendment so Plaintiff must agree or go on with new trial.
Additur: The court offers the defendants a choice to add to the damage award or go through a new trial.
Court playing hardball with defendant
Only allowed in state court because it violates seventh amendment
