Civ Pro Flashcards
Time Period for Actions
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.
Jurisdiction (Court’s Power)
Personal Jurisdiction (PJ, in personam power over a particular defendant):
Personal Jurisdiction - Traditional Bases (CDP)
Consent (appearance, implied by presence), domicile, presence (service in forum).
Personal Jurisdiction - Statutory Basis
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.
Personal Jurisdiction - Constitutional Basis
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).
Personal Jurisdiction - Minimum Contacts
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).
Personal Jurisdiction - Traditional Bases (Adequacy)
Traditional bases are constitutionally adequate to supply “minimum contacts” with forum.
Personal Jurisdiction - Relatedness of Claim to Defendant’s Contacts
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).
Personal Jurisdiction - Fairness Factors
Consider interests of 1) plaintiff in getting relief, 2) forum state in providing redress, and 3) defendant in not being gravely inconvenienced.
Jurisdiction - Subject-Matter Jurisdiction (SMJ)
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.
Subject-Matter Jurisdiction - Federal-Question Jurisdiction
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.
Subject-Matter Jurisdiction - Exclusive Federal Statutes
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).
Subject-Matter Jurisdiction - Diversity Jurisdiction
Complete diversity of citizenship + AIC > $75k (plead in GF, net interest or costs).
Diversity Jurisdiction - Citizenship
State of domicile or permanent residence is determined at the time of filing.
Diversity Jurisdiction - Domicile
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.
Diversity Jurisdiction - Principal Place of Business
Use “nerve center” test (where decisions are made—HQ) over “muscle” test (where manufacturing or services are done).
Diversity Jurisdiction - Domicile Requirements
Domicile must be genuine (OK even if to create diversity jurisdiction).
Diversity Jurisdiction - Complete Diversity
No plaintiff can be from the same state as any defendant (U.S. vs. foreign OK).
Diversity Jurisdiction - AIC
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).
Diversity Jurisdiction - Not Defeated by Actual Recovery < $75k
AIC may include attorney fees.
Subject-Matter Jurisdiction - Supplemental Jurisdiction
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).
Supplemental Jurisdiction (Limitation)
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.
Federal Court Discretion
Federal court may decline to exercise its discretion if claims are dismissed before trial (not on merits).
Erie Doctrine
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.
Erie Doctrine - Simplified Two-Step Approach
- 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.
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).
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.
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.
REMAND - Discretionary
If federal trial would be unwise, judge has discretion to remand back to state court.
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.
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).
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.
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.
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.
Service - Process
Do the facts include a process server? Check whether 12(b)(4) or 12(b)(5) MTD is applicabl
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.
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.
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.
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.
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.
Counterclaims - Permissive
Any other claim defendant has may be asserted (as long as it has federal jurisdiction).
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).
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.
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.
