Civ Pro Flashcards
Complaint first filed with the Court. When does Service of the Process/Complaint to the other party have to happen?
Within 90 days
Elements of a Complaint
- Statement of Jdx
- Statement of Facts
- Demand for Relief
Complaint must be pled w/specificity in
Fraud & Special Damages
Answer must be served within
21 days of the service of the complaint
Answers must plead
Affirmative Defenses:
1. Contributory Negligence,
2. Statute of Frauds,
3. Statute of Limitations
4. Illegality
5. Duress
Amendment of the Complaint as of Right reqs.
Once as of right
W/in 21 days of Service of pleading (after 21 days, need court’s permission–“when justice so requires”)
leave of court
permission of Court
Relation Back (Amended Pleadings)
Amended pleadings can relate back to the date of the original pleading as long as it arose out of the same conduct, transaction, or occurrence (C/T/O)
Relation Back (for Parties)
- Same C/T/O
- w/in 90 days of filing the complaint (such that original party would not be prejudiced)
- knew/should have known but for mistake of party’ identification
Rule 11
Attorney to best of their “knowledge info, and belief,” there is a basis for the claim
1. legal arguments are warranted by existing law
2. allegations have evidentiary support
3. no improper purpose
Counterclaim
∆ raises a claim back at π
Compulsory Counterclaim
- same T/O
- Ct already has supplemental jdx
Permissive Counterclaim
- not same T/O
- needs independent jdx
Permissive Joinder
Multiple πs can join the lawsuit if:
1. single T/O
2. common Qs of law/fact
2 Types of Compulsory Joinder
- Necessary party
- Indispensable Party
Necessary Party
impairment of interest if the party is not joined
If necessary party will destroy jdx, case may still proceed
Indispensable Party
prejudice if party is not joined
If indispensable party will destroy jdx, case must be dismissed
4 prereqs for class action/certifications
- size: case must be so large that joining all the claims would be impracticable
- common Q of law/fact
- typicality: claim of the reps are representative of the class
- fair representation: no conflict of interest
Types of Class Actions
- Prejudicial Risk (i.e., Impairment of Interests of the class members)
- Injunctive Relief / Declaratory Relief
- Common Question (most common)
Which type of class actions may members not opt out is notice not required?
Prejudicial Risk and Injunctive/Declaratory Relief
Notice is not required, in discretion with the court
Which type of class actions may members opt out
Common Question
All members must be provided notice
Diversity Class Action
- Citizenship of reps
- 1+ named member must meet $75K+ OR sum of the claims is $5M
If class cert is denied, may the action be appealed
yes
Do you need court permission for 3P Intervention as of right?
No
Do you need court permission for permissive intervention (3P)
Yes
Statutory Interpleader
- Nationwide Service
- Any 2 claimants can be diverse
- $500+ at stake
- deposit money/prop. in bond or to Court
Rule Interpleader
- No nationwide service
- Any 2 claimants can be diverse
- $75+ K req.
impleader
adding 3P ∆ who owes part/all of claim
What’s discoverable
- not privileged
- relevant
- proportional to needs of the case
Absolute Immunity in discoverable information
- Mental impressions
- Conclusions
- Legal Opinions + Theories
Witness identity and documents–are they discoverable
Yes, all are discoverable
Duty to Supplement
Civ Pro
parties have a duty to supplement any incomplete or wrong information of info supplied to the other side and must be done in a timely manner
Request for Admissions
a written request for admission; after which, becomes conclusively established
Physical/Mental Exam allowed when
- A mental/physical condition is in controversy,
- requires Court Order, and
- Show good cause
object to a request
bc information is not relevant
protective order to stop discovery for
embarrassment, harassment, or undue burden
Is discoverable information admissible at trial?
Yes, freely admissible
Conference of Parties
Parties MUST:
1. Meet &
2. Submit Discovery Plan
Scheduling Conference Req.
- Court MUST have a conference to limit time
- Court must issue a scheduling order w/in 90 days of filing the complaint and
- the order cannot be modified unless “good cause”
Final Pretrial Conference
- Court MAY hold conference (which is then issued by the Court’s Pretrial Order)
- For purposes, like expediting disposition of action, effective case mgmt, improving the quality of trial and facilitating settlement
Only modified to prevent “manifest injustice”
TRO
- No notice needed (but written certification explaining why notice was not provided to the competitor should be submitted to the judge)
- IMMEDIATE irrreparable harm
- expires in no more than 14 days
Preliminary Injunction
- Notice and hearing required
- Irreparable harm
- Substantial likelihood of succeeding on the merits
- Balance of equities
- In the public’s interest
remittitur
request to the court to reduce allegedly EXCESSIVE jury award of damages
permitted at judge’s discretion
Venue (in priority order)
Judicial dist. permitted:
1. in dist. in which any ∆ resides, if all ∆s reside in the same state or
2. in dist. where subst’l part of the property that is subject to the action is located
If a federal court has personal jurisdiction over a ∆, is venue proper in that state?
Yes
If a π sues on less than all claims arising out of a transaction,
unraised claims are merged if the π wins or
are barred when the ∆ wins
in rem jdx
case must be about that property
Expert witness disclosures must occur
At least 90 days before the date set for trial UNLESS failure to disclose in a timely manner is harmless to the opposing party
π may dismiss an action w/o court approval or agmt of the other parties prior to
the service of an answer or SJ motion
Who holds the right to remove
∆
Must the court adopt a party’s proposed jury instructions on an issue if opposing party did not submit any proposed jury instructions?
No
Are alternative or inconsistent allegations are permissible?
Both are permissible
Insurance agreements discovery rule
Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
Orders concerning injunctions are
Appealable immediately as of right (i.e., interlocutory appeal)
Motion for judgment as a matter of law must be raised
Prior to jury verdict; otherwise, court will not grant it
If insurance company is sued directly
The insurance company is considered domiciled in place of incorporation, PPB, and the domicile of the insured
Appellate court’s standard of review for lower court’s factual finding in BENCH TRIAL
Clearly erroneous
Typical evidentiary std for civil case
preponderance of the evidence
When a dispute involves the existence of an equitable interest in land, the general conflict-of-law rules is that
Conflict-of-laws rule of the state where the property is located should apply
Cross-claim is never mandatory. T/F?
True
Is a party generally required to raise a counterclaim that arises out of the same T/O?
Yes or the party must forfeit the right to pursue the counterclaim in a subsequent action
forum defendant rule
prohibits removal when:
- SMJ arises solely from diversity jdx AND
- ∆ is a citizen of the forum state
Is federal court required to dismiss supplemental jdx-state law claim if original federal law claim is dismissed?
No, ct MAY decline to exercise supplemental jdx but is not required to
federal inadvertent-waiver rule
disclosure of works protected by attorney-client priv. or work product doctrine is not waived if:
- disclosure was made in a federal proceeding or to a federal agency;
- disclosure was inadvertent;
- privilege holder took reasonable steps to prevent disclosure; and
- privilege holder promptly took reasonable steps to rectify the error
When is dismissal of action an appropriate sanction
Only when a party’s conduct is serious, repeated, extreme, and otherwise inexcusable
Must parties always be the same for claim preclusion?
No, parties may be successors-in-interest or in privity with the parties to the prior action
Trial judge’s findings of fact cannot be set aside unless
Clearly erroneous
Party cannot raise matter on appeal for a trial court’s jury erroneous instruction unless
the appellate ct can address a plain error w/r/t jury instructions that affects SUBSTANTIAL RIGHTS
In determining state’s substantive law, District courts will be bound by
the rulings of the state’s HIGHEST court
Is irrelevant or inaccurate factual allegations enough to dismiss a complaint
No, the court will accept a complaint’s factual allegations and true
& ignore the opposing party’s allegations when assessing if the complaint states a proper claim
A third party complaint (i.e., impleader) is based on derivative liability, which means
the impleader must assert that nonparty is liable for all (indemnity) or part (contribution) of the π’s claim
∆ may not assert that 3P is DIRECTLY liable to the consumer
Motion to Correct
When a judgment/order contains a clerical mistake or mistake arising from an oversight or omission (NOT an erroneous interpretation of the law)
Writ of Mandamus
requests that an appellate court direct a dist. ct. to do/refrain from doing smth
when exceptional circumstances clearly exist &
no other adequate remedy is available
When is an appeal allowed before the court makes final judgment (i.e., exceptions to the final judgment rule)
In Certain Circumstances, An Appeal Can Be Made Prematurely
Injunction
Cert. by dist ct
Class Action cert
Appt of receiver
Admiralty cases
Collateral order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent-infringement order
additur
request to court to increase allegedly inadequate jury award
NOT PERMITTED or would violate 7A right to trial
If remittitur request is granted by the court, the opposing party
opposing party must choose bw:
- reduction in damages or
- new trial on damages
Domicile of Unincorporated Ass’ns
every state where its members or partners are domiciled
For SOP of an incompetent/minor
π must follow rules of the state where service is made
For SOP of federal gov/agency
π must deliver summons + complaint to :
1. U.S. attorney for dist. where action is brought or designated employee OR civil process clerk at U.S. attorney’s office via registered/certified mail;
2. U.S. AG via registered/certified mail; AND
3. agency officer whose conduct is challenged via registered/certified mail
For SOP of state/local gov’t
π must file:
1. notice to chief executive officer OR
2. follow rules of state where gov’t is located
For SOP on foreign gov’t
π must deliver summons & complaint: (in priority order)
1. by special arrangement bw π & foreign state;
2. by internat’l convention;
3. by sending to head of ministry of foreign affairs via mail requiring signed receipt; OR
4. if no notice by mail w/in 30 days, by sending 2 copies to U.S. Sec. of State via mail requiring signed receipt
Which Relief from final judgment needs to be filed w/in 1 year
- Mistake, inadvertence, surprise, excusable neglect,
- newly discovered evidence
- fraud, misrep, misconduct
Others, like void judgment, –> w/in a reasonable time
7A right to jury trial when
- legal claim (i.e., not equitable) AND
- > $20 in controversy
A district court’s order to remand the case is typically appealable. T/F
False
Typically NOT appealable
bc Congress has explicitly forbidden these appeals to expedite litigation and avoid drawn-out removal disputes
Required Discovery Disclosures
- initial disclosures: w/in 14 days after initial planning conference & w/in 30 days after post-conference service or joinder
- expert testimony: more than 90 days before trial
- pretrial disclosures: more than 30 days before trial
initial disclosure
parties with relevant information;
items in party’s possession that support claim/defense;
computation of damages & supporting material;
relevant insurance policies
Pretrial Conference, judge has broad discretion to
- establish time limit for each party’s presentation of evidence,
- limit each party’s use of expert testimony
- rule on the admissibility of evidence
During pretrial conference, judge may decide which party has the burden of proof. T/F
F
general jdx
when the ∆ has continuous and systematic contacts w/the forum state that the ∆ is essentially “at home” (e.g., doesn’t include a foreign company’s U.S. subsidiary in the forum state)
A court can impose sanctions for violations of Rule 11, but cannot
cannot impose MONETARY sanctions on a party represented by an attorney for violating Rule 11
Final judgment rule
must resolve a dispute on the merits and leave nothing for the court to do but enforce the judgment (i.e., partial MSJ is not final)
specific jdx
claim arises from or is closely related to the ∆’s min. contacts w/the forum state such that exercise of jdx would not offend notions of fair play + justice
Federal cts may request to assign unsettled issue of state law to state’s highest court even if the decision would be an advisory opinion. T/F
True
District court can certify an issue for appeal BEFORE final judgment when
- there is a subst’l difference of opinion on the controlling Q of law AND
- an appeal will materially advance the ultimate termination of litigation
bench trial judge given deference as factfinder
Appellate court will not overturn judge’s findings of fact unless CLEARLY ERRONEOUS
bench trial judges’ findings of fact must be in written opinion/memorandum of decision. T/F
False, can be stated orally (or written) on the record too
attachment
seizure of person’s property to secure/satisfy a future judgment
replevin
seizure of personal property in the ∆’s possession that is transferred to the π’s possession pending outcome of the suit
garnishment
court ordering 3P to hold indebted party’s assets (e.g., wages) until further judicial noticer
receivership
appt of neutral 3P to manage & administer disputed assets/property
jdx of a U.S. citizen living abroad who is not a citizen of the foreign country cannot…
bring a case under diversity jdx
bc neither belongs to a U.S. state or a citizen of another country
permanent residents are considered
citizens of the state they live in
foreign π and foreign ∆ w/o an American citizen on either aisle cannot
bring suit under diversity jdx
If ∆ brings in 3P-∆ for indemnification and that 3P-∆ is domiciled in the same state as the π in a diversity jdx,
the court may still hear the claim bc:
- it does NOT contaminate diversity of citizenship bw OPPOSING πs and ∆s OR
- seeks greater than $75,000 and is not made by a π thru joinder, intervention, or impleader, etc.
essentially, the π is not suing the 3P-∆, so it doesn’t contaminate diversity even if they are domiciled in the same state
multiple πs via supplemental jdx
permissive if atl single π meets $75K
federal question cases
- admiralty
- maritime
- IP
supplemental jdx typically allowed
- compulsory counterclaim
- joinder in compulsory counterclaim
- cross-claim
- impleader of 3P ∆s
generally if ∆ is adding in new parties
supplementally jdx typically not allowed
- original π v. 3P ∆
- compulsory joinder
- joinder of ∆s
- intervention
generally if π is adding new parties
citizenship is determined at what point
WHEN THE COMPLAINT IS FILED
so if π moves and destroys diversity after the complaint is filed, then case should be dismissed for lack of SMJ
jury instruction is preserved for new trial if:
- party filed request for jury instruction and obtained a ruling on record;
- party clearly objected to jury instruction on record
otherwise, you need plain error for a new trial
leading questions are generally prohibited in direct- or cross-examination
leading questions are prohibited in direct-examination UNLESS
1. W is a child or adult w/difficulty communicating
2. Q is necessary to develop the W’s testimony
3. W is aligned with an adverse party (e.g., hostile witness)
leading questions are permitted in cross-examination UNLESS
the scope of the question goes beyond the scope of direct examination
Who must hear and decide all preliminary Qs of fact INCLUDING THE ADMISSIBILITY OF EVIDENCE
the judge
a single π may add as many unrelated claims as they want to reach $75,000 in a diversity suit. T/F
T
In a diversity suit, if multiple πs don’t have $75,000 individually but $75,000 cumulatively, they may bring suit. T/F
False, at least one of the πs must have a $75,000 claim
2 foreign citizens in federal court
no diversity
foreign citizen + US citizen
diversity
can you join parties simply to obtain diversity?
No
supplemental jdx requires
- supplemented claim to arise from a COMMON NUCLEUS OF FACTS with the original claim
- new party must not destroy diversity (if for diversity original case)
BUT ct has DISCRETION on whether to grant supplemental jdx
in personam/personal jdx 3 general rule
- present/personally served (except if ∆ is in state merely to attend a different proceeding)
- domiciled
- consent
personal jdx if not the 3 trad’l rules
- Check the state’s long-arm statute;
- Whether or not the state has long-arm statute, check for minimum contacts
Minimum contacts (PJ) generally
- suit doesn’t offend trad’l notions of fair play and justice
- ∆ could reasonably anticipate litigation
Minimum contacts (PJ) for corporations
- purposeful availment
- systematic & continuous activities (BE LITERAL)
In rem jdx
jdx for JUDGMENT over the PROPERTY (e.g., quiet title suit)
Quasi in rem jdx
Jdx going after property to satisfy a jdugment against an INDIVIDUAL
SOP
- only in the state where dist. ct sits OR
- anywhere allowed by long-arm statute
- 100-mi bulge rule: (ONLY FOR out-of-state add’l parties OR indispensable parties)
SOP 100 mi-bulge rule
- for out-of-state add’l parties & indispensable parties
- out-of-state service allowed w/in 100 mi. radius of the ct where suit is pending
SOP requires
ADEQUATE NOTICE
Proper ways to Service Process
- Personal service (by a non-party over 18 y.o.)
- at home w/person of a suitable age (=someone likely to give it to the ∆)
- First Class Mail (as long as ∆ returns acknowledgement or waiver form)
- Authorized Agent
- Any state law methods
Service of Process out-of-state
- mail OR
- newspaper if no other reasonable way
SOP for Corps
- officer or designated agent
- anyone of sufficiently high placement
Removal Timing
filed w/in 30 DAYS of service of complaint
Who can remove
- ONLY a ∆ may remove
- if multiple ∆s, ALL ∆s must agree
removal only permitted if it could have been brought in federal ct in the first place
Removal for Diversity Case
- Actual removal cannot be removed more than 1 year after the START of the removal process AND
- ∆ cannot remove if he is a citizen of the forum state
Removal for Lawsuit with Multiple Claims
as long as one claim is removal, then the entire case can be removed
remand
π bringing the case back to State Court after improper removal
remand timing
- w.in 30 days of Notice Removal filing
- ∆ has the burden to show removal was proper
Proper venue - federal district court can hear the case where:
- any ∆ resides IF ∆s reside in the same state
- where subst’l part of the events took place
If not 1. or 2.
3. where there is PJ over ∆
proper venue for corproations
- district where PPB
- any district in the state of incorporation
transfer of venue for a original case w/proper venue
Ct may TRANSFER to another district
1. for the convenience of parties AND
2. in the interest of justice
Law of the original venue will apply
transfer of venue for a original case w/improper venue
Judge may dismiss OR
Transfer:
1. in the interest of justice AND
2. transfer to any district where venue would have been proper OR where all parties consent
If the more convenient forum would be a foreign country
case must be DISMISSED
