Civ Pro Flashcards
1
Q
Time Period for Actions
A
In computing a time period for taking an action (e.g., filing within X days), weekends are counted as part of the time period. If the last day falls on a weekend or legal holiday, the action may be taken on the next non-holiday weekday.
2
Q
Jurisdiction (Court’s Power)
A
Personal Jurisdiction (PJ, in personam power over a particular defendant):
3
Q
Personal Jurisdiction - Traditional Bases (CDP)
A
Consent (appearance, implied by presence), domicile, presence (service in forum).
4
Q
Personal Jurisdiction - Statutory Basis
A
A state’s long-arm statute gives jurisdiction over nonresidents to constitutionally permissible extent (assume State X has one). Exercise of such must still have constitutional basis.
5
Q
Personal Jurisdiction - Constitutional Basis
A
To satisfy due process requirement for jurisdiction over a defendant, he must have had such “minimum contacts” with the forum so that exercise of jurisdiction over him does not offend “traditional notions of fair play and substantial justice” (International Shoe “minimum contacts” test).
6
Q
Personal Jurisdiction - Minimum Contacts
A
Minimum contacts between a defendant and a forum state are purposeful availment to forum state + reasonable foreseeability of being hailed into forum state court (e.g., working, receiving compensation).
7
Q
Personal Jurisdiction - Traditional Bases (Adequacy)
A
Traditional bases are constitutionally adequate to supply “minimum contacts” with forum.
8
Q
Personal Jurisdiction - Relatedness of Claim to Defendant’s Contacts
A
Specific jurisdiction arises when the cause of action is related to defendant’s contacts. General jurisdiction can arise even when cause of action is not related: defendant must have had “continuous and systematic contacts” with the forum such that defendant is “essentially at home” (domicile, state of incorporation, or principal place of business).
9
Q
Personal Jurisdiction - Fairness Factors
A
Consider interests of 1) plaintiff in getting relief, 2) forum state in providing redress, and 3) defendant in not being gravely inconvenienced.
10
Q
Jurisdiction - Subject-Matter Jurisdiction (SMJ)
A
Court’s power over the case—federal court requires FQJ or DJ. Cannot be waived. Court must dismiss if lack of SMJ determined. May be raised anytime, even on appeal.
11
Q
Subject-Matter Jurisdiction - Federal-Question Jurisdiction
A
Federal-question jurisdiction over plausible claims that arise under the Constitution, treaties, or U.S. laws. Plaintiff’s complaint must contain substantial FQ on its face. Insufficient to anticipate federal defense.
12
Q
Subject-Matter Jurisdiction - Exclusive Federal Statutes
A
Involves patents and copyrights, antitrust, securities, banking, interstate commerce, civil rights (U.S. as a party in K tort or case, e.g., estate, enforce alimony).
13
Q
Subject-Matter Jurisdiction - Diversity Jurisdiction
A
Complete diversity of citizenship + AIC > $75k (plead in GF, net interest or costs).
14
Q
Diversity Jurisdiction - Citizenship
A
State of domicile or permanent residence is determined at the time of filing.
15
Q
Diversity Jurisdiction - Domicile
A
Resident’s domicile = physical presence + intent to remain indefinitely. Corporation’s domicile = state of incorporation and state of the corporation’s principal place of business.
16
Q
Diversity Jurisdiction - Principal Place of Business
A
Use “nerve center” test (where decisions are made—HQ) over “muscle” test (where manufacturing or services are done).
17
Q
Diversity Jurisdiction - Domicile Requirements
A
Domicile must be genuine (OK even if to create diversity jurisdiction).
18
Q
Diversity Jurisdiction - Complete Diversity
A
No plaintiff can be from the same state as any defendant (U.S. vs. foreign OK).
19
Q
Diversity Jurisdiction - AIC
A
Must exceed $75k. Can aggregate by adding together 2+ claims by 1 plaintiff or suing joint tortfeasors. Can aggregate multiple plaintiffs if they are enforcing a single right of common interest (class).
20
Q
Diversity Jurisdiction - Not Defeated by Actual Recovery < $75k
A
AIC may include attorney fees.
21
Q
Subject-Matter Jurisdiction - Supplemental Jurisdiction
A
Gives discretion to federal court to hear additional claims (e.g., state claim) arising from a common nucleus of operative facts as the underlying claim that invoked federal subject-matter jurisdiction (FQJ/DJ).
22
Q
Supplemental Jurisdiction (Limitation)
A
Cannot be used if plaintiff is solely trying to avoid complete diversity requirement in federal court. Can be used to override AIC requirement, e.g., amount in joint tortfeasors where breaking diversity.
23
Q
Federal Court Discretion
A
Federal court may decline to exercise its discretion if claims are dismissed before trial (not on merits).
24
Q
Erie Doctrine
A
Generally, federal court must use state substantive law and federal procedural rules. Applies only where court has diversity jurisdiction or claims attached under supplemental jurisdiction, and where the state law that would apply conflicts with federal rule.
25
Erie Doctrine - Simplified Two-Step Approach
1. Is there a “arguably procedural” federal rule on point? Based on U.S. Constitution, statute, FRCP, case law, etc.? If so, federal procedural law applies. If not, balance state and federal interests—consider likelihood of different outcomes under state law. “Substantive” law is one that determines “outcome”—statutes of limitations and tolling, choice of law, elements of claim or defense.
26
Removal
Only a defendant can remove case originally filed in state court to federal court if the case could have been brought by the defendant in federal court, that is, if there is SMJ (check whether there is FQJ or DJ).
27
Removal - Timing
Must be made within 30 days of case becoming removable (e.g., being served notice, pleading, complaint). When a new defendant joins the case, it starts another 30 days to remove the action with original defendants. For cases based solely on diversity, removal allowed within 1 year after brought in state court, unless plaintiff acted in bad faith. If case has a claim that would arise under federal law (test one claim with FQJ) and also 2 state law claims that do not invoke DJ or supplemental jurisdiction, case may still be removed to federal court. Federal court must sever and remand state law claims.
28
REMAND - Mandatory
If removal was improper, judge must remand back to the state court. Plaintiff's motion for remand must be made within 30 days from removal notice. If there is a lack of SMJ, plaintiff may move to remand at any time. Defendant has the burden to show that removal to federal court was proper in the first place.
29
REMAND - Discretionary
If federal trial would be unwise, judge has discretion to remand back to state court.
30
Venue - Appropriate Forum
Plaintiff's choice of forum is appropriate in any federal district where: 1) Any defendant “resides” (domiciled, or where corporations are subject to PJ via minimum contacts), provided that ALL defendants are located in the same STATE OR where a substantial part of the claim arose or a substantial part of the property that is the subject of the action is. 2) If above are unavailable, any district where any defendant is subject to PJ (could end up being anywhere in a state). 3) Consent or waiver by failing to object also creates proper venue.
31
Venue - Transfer
Plaintiff may move to transfer to another federal court (SMJ is a matter of power; venue is a matter of convenience). 1) Can only transfer to another district where the case could have been brought in the first place (SMJ exists, PJ exists over defendants, and venue is proper) or if all parties agree (even if venue ordinarily would not be proper). 2) If original venue is IMPROPER, court MUST transfer or dismiss (12(b)(3) MTD for improper venue). 3) If original venue is PROPER, court MAY transfer in the “interest of justice” (convenience, evidence).
32
Forum Non Conveniens (FNC)
Plaintiff or defendant may move to dismiss or stay (postpone) under FNC (rather than transfer) if original venue is inconvenient + adequate alternative forum with proper jurisdiction exists. Inconvenience factors: Moving party shows 1) convenience of parties and witnesses, 2) ease and access to evidence and/or 3) calendar congestion, etc.
33
Service - Server Requirements
Must be any non-party over age 18. Methods: summons & complaint by personal service on defendant or authorized agent, substitute service (leaving copy of summons and complaint at defendant’s abode with person of suitable age and discretion, or to defendant’s agent authorized to receive service). Service is waived if defendant returns waiver within 30 days.
34
Service - Time Limit
If a defendant is not served within 90 days after the complaint is filed, court must dismiss the action or order that service be made within a specified time. EXCEPTIONS: Plaintiff's good cause.
35
Service - Process
Do the facts include a process server? Check whether 12(b)(4) or 12(b)(5) MTD is applicabl
36
Pleadings - Complaint
Plaintiff files complaint (stating basis of SMJ, claims, relief). Defendant answers within 21 days if ordered. Plaintiff replies within 21 days. Plaintiff may file Rule 12 motion before answer. If motion denied, Defendant answers within 14 days of the notice of denial.
37
Pleadings - Notice Pleading
Complaint requires notice pleading that puts defendant on notice of enough facts to raise a plausible claim (plausibly suggesting entitlement to relief, not merely conceivable). Also applies to cross-claims, third-party claims, counterclaims.
38
Pleadings - Heightened Pleading
Must plead with particularity if plaintiff claims fraud, mistake, special damages (not reasonably anticipated for the type of claim asserted), or conditions precedent not being satisfied.
39
Joinder of Claims (FRCP 18)
Plaintiff may join as many claims in a single action as the plaintiff has against an opposing party. Defendant’s answer must specifically deny/admit each assertion or generally deny with specific admission. No denial = admit.
40
Counterclaims - Compulsory
Defendant’s answer may include a counterclaim (joinder of claims): If defendant’s claim arises from the same transaction or occurrence (STO) as plaintiff's, it must be pleaded or else barred.
41
Counterclaims - Permissive
Any other claim defendant has may be asserted (as long as it has federal jurisdiction).
42
Crossclaims
Defendant’s answer may include a crossclaim against a coparty if the claim arises out of STO as plaintiff's claim. The coparty (e.g., codefendant, third-party defendant) must raise any compulsory claims against the crossclaimant (third-party plaintiff).
43
Amendments to Pleading
As of right, a party may amend (1) within 21 days of service before a responsive pleading (not motion) or (2) if pleading requires a response, 21 days after responsive pleading pre-answer motion. May also amend with leave of court or other party's written consent. Other party has 14 days to respond or remaining response time for original pleading.
44
Relation Back
Amended pleading with new claims or defenses relates back to original pleading date, only if new claim/defense arose from the same transaction or occurrence as original.
45
FRCP 15(c) - New Party Addition
New party can be added to complaint even though SOL has run as to him, only if: 1) The claim arose from the same transaction or occurrence alleged in the original claim. 2) New party had notice of the action within the time limit for service (90 days from filing), and 3) New party knew or should have known within 90 days of filing that, but for a mistake concerning the identity of the proper party, he would have been included in the original action.
46
MOTIONS - Pre-answer
Defendant may raise the below 12(b)(#) objections by motion to dismiss (MTD) with or instead of pleadings (e.g., an answer).
47
Threshold Defenses
Bolded defenses (2)–(5) (lack of SMJ, Lack of PJ, improper venue, insufficient process and service) above and affirmative defenses must ALL be raised at the beginning of the case in the FIRST response by answer or pre-answer MTD or they are waived!
48
Other 12(b) Defenses
Defenses (6), (8) and (9) are not waivable and need not be raised in the first response.
49
12(b) MTD - Material Outside Pleading
If any material outside the motion to dismiss is used that was not originally litigated, it is treated as a motion for summary judgment (FRCP 12(d)).
50
Court Response to MTD
Court must give all parties opportunity to respond with material pertinent to the motion.
51
Sanctions (FRCP 11)
Court may impose sanctions against a party that presents an improper paper. By court’s initiative, the court enters an order to show cause; the party responds in 21 days. Other parties or motions for sanctions: If not withdrawn/corrected by written notice, any party may file a motion for sanctions with the court.
52
Joinder of Parties (FRCP 19)
Compulsory joinder: An indispensable party who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if court cannot grant complete relief to existing parties without that party, or the interests may be impaired or impeded if the case proceeds without joining that party.
53
Permissive Joinder
Parties may join as plaintiffs or defendants and only if: 1) claim is made by each plaintiff and against each defendant relating to arising out of the same series of occurrences or transactions or 2) question of fact or law common to all the parties.
54
Impleader
A plaintiff or defendant can bring in a non-party (third-party defendant) for liability on original claim.
55
Interpleader
Person holding property (stakeholder) to join all potential claimants in one suit. Section 1335 interpleader: Requires only one claimant diverse from another, only $500 is at issue.
56
Class Actions
Class actions are proper if CAN’T FER/CQ: Commonality: Q of law or fact in common to class. Adequacy of representation: Class rep will fairly and adequately represent class (interest aligns). Typicality: Representative’s claims (interests align). Numerosity: Too many class members for practicable joinder.
57
Class Action Fairness Act (CAFA)
SMJ is established if minimum diversity (any class member diverse from any defendant) + aggregate AIC > $5M + 100+ members in proposed class. Any defendant may remove case from state to fed ct. EXCEPTIONS: No federal court jurisdiction under CAFA if primary defendants are states, state officials, gov’t entities; or action relates to affairs of a corporation and is based on laws of state of incorporation; or action solely relates to federal securities laws.
58
Res Judicata (Claim Preclusion)
Prevents re-litigation of any part of a cause of action that has been adjudicated on its merits or could have been raised, that arises from the same transaction or occurrence between same parties. Does not bar an unforeseeable subsequent claim (e.g., cancer resulting from a product liability claim).
59
Collateral Estoppel (Issue Preclusion)
Prevents re-litigation of and asserts the effect of particular issue that is effectively identical as the previous one, it was actually litigated by same parties/privies and decided, and the resolution of that issue was essential (non-collateral) to the judgment.
60
Mutuality - Defensive
Traditionally, only a party to the prior suit could use collateral estoppel. Now, non-party A can assert prior judgment (e.g., IT lost to original defendant).
61
Mutuality - Offensive
New non-party B can use estoppel against original party if: IT lost to original party, new party B is suing original party. Factors: IT had opportunity to join in first suit, had incentive to litigate it, prior judgments were inconsistent, procedural opportunities were not available in first suit.
62
Discovery - Standard and Scope
A party may seek to obtain any non-privileged matter that is relevant to a claim or defense of any party and proportional to the need of the case (considering importance of issues, AIC, parties’ access to relevant information, parties’ resources, importance of discovery in resolving issues, burden/expense vs. likely benefit). Information sought need not be admissible at trial to be discoverable as long as it is reasonably calculated to lead to the discovery of admissible evidence.
63
Electronically Stored Information (ESI)
Responding party need not produce if not reasonable because of burden or cost. Must show on motion to compel. Court may still order for cause with cost-shifting conditions.
64
Discovery - Required Disclosures
Initial disclosures (within 14 of 26(f) conference): Names and contact info of individuals likely to have discoverable information, evidence for claims or defenses, computation of damages, insurance agreements.
65
Discovery - Expert Testimony
Expert testimony (90 before trial): Identify of experts expected at trial, qualifications, opinions, their basis.
66
Discovery - Pretrial Disclosures
Pretrial disclosures (30 before trial): Info about evidence to be used (docs, trial and deposition witnesses).
67
Work Product
Material prepared in anticipation of litigation or trial discoverable only upon showing substantial need, cannot obtain substantial equivalent without undue hardship. Mental impressions, conclusions, opinions are usually protected.
68
Privilege
Confidential communications between expert and counsel are privileged, except compensation info or facts given to expert.
69
Withholding Information
Party withholding info believed to be privileged must make claim expressly and describe its nature to other party.
70
Duty to Supplement
If disclosed information was materially incomplete or incorrect, and other party does not know.
71
Pretrial Conferences
Parties must "meet and confer" at least 21 days before a scheduling conference to plan discovery and initial disclosures and to consider claims, defenses, settlement, deadlines.
72
Discovery Devices
Interrogatories (up to 25, including subparts), requests for admissions, requests for production, depositions (of anyone, up to 10 per side, once per person—unless court order or stipulation), motions to compel, subpoenas duces tecum (documents from parties and non-parties), subpoenas (to produce non-party within 100 miles of where person lives or works, may be reimbursed cost of attending if requesting party abuses), physical or mental examinations (by "suitably licensed or certified examiner" by court order only for good cause, when plaintiff's condition is in controversy—see FRCP 35; examined party may request copy of exam, which waives privilege regarding condition).
73
ESI
Requesting party may specify form of production; responding party must use that form unless objected to. If no form specified, may use any form the ESI is ordinarily maintained in or reasonably usable by other party.
74
Objection to Deposition Notice
Deposition officer’s qualification, or taking of deposition (e.g., form of oral or written questions, or competence, relevance, materiality of testimony) is waived if it is not made at the deposition.
75
Trial - Arbitration
Agreement to submit to arbitration is enforceable under Federal Arbitration Act. Preempts state law.
76
Trial - Offer of Judgment
If defendant offers judgment before trial, a party offers judgment against it on specified terms (settlement). If plaintiff rejects offer and gets less favorable judgment, it must pay costs (incl. any costs under state rule).
77
Trial - Default Judgment
May seek if a defendant fails to defend (no response or complaint). If court takes some action, no default.
78
Default Judgment - Types
1) Voluntary dismissal: Plaintiff may give up the case by filing a notice before defendant’s answer or motion for summary judgment, or by leave of court. 2) Involuntary dismissal: Against plaintiff, by defendant or by court motion, for failing to comply with any Federal Rule of Civil Procedure or court order.
79
Trial - Jury Trial (JT)
Party who wants it must file demand in writing no later than 14 days after service of last pleading directed to jury-triable issues of fact. Demand may be withdrawn if all parties consent.
80
Jury Trial - No Demand
No demand within 14 of pleading = waiver of right. Court may order jury trial if plaintiff’s waiver was unintentional.
81
Jury Trial - Legal Claims
If legal (seeking damages) are asserted, other party cannot be denied right to jury trial.
82
Jury Trial - Mixed Claims
If legal + equitable claims in one action, legal claim should be tried first to jury, then equitable claim.
83
Jury Trial - Federal Diversity Suit
Jury trial must be permitted if state would require it.
84
Jury Trial - Size
6-12 jurors. May have fewer than 6 jurors if parties agree.
85
Jury Trial - Excusal
Juror may be excused for good cause (e.g., illness) with or without substitution.
86
Jury Trial - Selection
Venire of potential jurors, reasonable cross-section of community. Voir dire to ask about jurors’ potential bias in case. Unlimited number of jurors with bias (deliberate lie or unlikely to be impartial) may be challenged (excused) for cause. 3 peremptory challenges (for any reason except race or gender) per party.
87
Jury Trial - Instructions
Plaintiff may file proposed instructions at close of case. If not filed or objected to before deliberation, waived.
88
Jury Trial - Verdict
Must be unanimous unless parties agree otherwise.
89
Summary Judgment
Shall be granted if, from the pleadings, affidavits, and discovery materials on file (not merely allegations or denials) viewed in light most favorable to nonmoving party (NMP), the moving party shows that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Any party may move anytime until 30 days after close of discovery.
90
Summary Judgment - Burden
Moving party has burden to show prima facie case; burden shifts to NMP to show genuine issue of fact.
91
Judgment as a Matter of Law (JMOL)
Directed verdict may be granted to moving party if nonmoving party (NMP) has been fully heard on an issue, and a reasonable jury would not find for NMP on that issue, evidence viewed in light most favorable to NMP. May move after NMP has been fully heard and before submission of case to jury; defendant may move after plaintiff closes rebuttal or after plaintiff closes case.
92
Renewed Motion for JMOL
(JNOV, judgment notwithstanding the verdict) 2nd chance at JMOL raising only those issues raised in original JMOL. Must be filed within 28 days of judgment (assuming motion for JMOL was made before).
93
Motion for New Trial
Must be filed within 28 days of judgment. Court may order new trial on its own. Reasons include: error during trial; jury misconduct; newly discovered evidence unable to be discovered earlier by reasonable diligence; unfair (prejudicial not harmless error) accident or surprise during trial; insufficient evidence to justify verdict; verdict against law; error in law; excessive/inadequate damages.
94
Remittitur (reduced award)
Judge offers new trial or lower award if he believes jury's compensatory damages are so excessive as to "shock the conscience" (or in diversity case, meets state standard for excessiveness).
95
Additur (higher award)
Not available in federal court. But if judge believes damages too low, may be basis for new trial.
96
JNOV
Losing party may move for JNOV and alternatively new trial. If it grants JNOV, must conditionally rule on new trial.
97
Motion to Alter or Amend
Motion to alter or amend (reconsider its final judgment based on new evidence, change in law, clear error of law or fact, or to prevent injustice) must be brought within 28 days of order. Otherwise, seek relief from judgment or appeal.
98
Motion for Relief from Judgment
Motion for relief from judgment based on mistake, fraud, misconduct must be filed within reasonable time up to 1 year.
99
Stay of Judgment
Judgments are not enforceable until 30 days after entry (except injunctions). Court may in its discretion stay execution of judgment while a post-trial motion (§ VIII-g) is pending, for security of opposing party.
100
APPEALS
Timing
101
Appeals - Timing
May appeal within 30 days of final judgment (ultimate decision by trial court of the merits of case) or order based on timely JNOV. May appeal within 60 days if U.S. is party to the action.
102
Appeals - General
Generally, only final orders and final judgments (ultimate decision by the trial court that disposes of the entire case on its merits) are reviewable. Interlocutory orders (ones made before final judgment) may not be reviewed before final judgment. EXCEPTIONS (i.e., interlocutory orders that are also reviewable):
103
Appeals - Interlocutory Orders
Interlocutory orders reviewable as of right, including injunctions, appointments of receivers, orders affecting possession of property, and certain federal cases (admiralty, patent infringement).
104
Appeals - Collateral Orders
Collateral orders, if the claim or issue is separable and collateral to the main suit and is too important to require deferring appellate review. A federal appeals court can review an interlocutory order that 1) conclusively determines the disputed issue now on appeal, 2) resolved an important issue separate and distinct from merits of the rest of the action (collateral), and 3) is effectively unreviewable on appeal from a final judgment (the disposition of that order affects the remaining cause of action).
105
Appeals - Examples of Collateral Orders
E.g., hear the appeal if there is a lack of SMJ. If not allowed to appeal the district court's ruling now, it will be effectively unreviewable until a final judgment. It would be a waste of judicial resources if plaintiff had to wait for a final judgment to raise the issue.
106
Appeals - Interlocutory Appeals Act
Review is discretionary and available based on trial judge's certification. Party must apply within 10 days of obtaining certification stating that the interlocutory order involves a controlling question of law where there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Then 2 of 3 appellate judges must agree to hear the appeal.
107
Appeals - Partial Judgment
Trial court may enter a final order as to some of multiple claims or parties in an action. This order is appealable, only on express determination that there was no just reason for delay of the judgment.
108
Appeals - Certification of Class Actions
Trial court's grant/denial may be appealed within 14 of order, discretionary review.
109
Standards of Review - Matters of Law
De novo review (appellate court's judgment substitutes trial judge's). Includes when damages excessive (see remittitur), any issue that puts burden of proof on wrong party.
110
Standards of Review - Findings of Fact
Non-jury - not disturbed unless clearly erroneous. Jury - appellate court affirms unless reasonable persons could not have made that finding.
111
Standards of Review - Mixed Questions
Mixed questions of law and fact - de novo review / clearly erroneous review if factual issues predominate.
112
Standards of Review - Discretionary Matters
Rulings in trial judge's discretion (e.g., leave to amend) - abuse of discretion.
