Civ Pro Flashcards
Personal Jurisdiction
Courts power over the parties.
The exercise of personal jurisdiction must fall within a state statue and exercise of personal jurisdiction must be constitutional.
States authorize jurisdiction over defendant who:
- is present in forum state
- is domiciled in forum state
- conducts systematic and continuous business in state;
- consents to jurisdiction; or
- commits an act covered by long arm statute
Due process standard for personal jurisdiction
Defendant must have such minimum contacts with the forum such that the exercise of personal jurisdiction is fair and reasonable!!!!
Specific Personal Jurisdiction
Cause of action relates to defendants conduct with the forum; did the defendant purposefully avail himself of benefits/protections of state law / anticipated being brought into state court?
General Personal Jurisdiction
When cause of action is unrelated to the defendants contact with the forum; court has discretion to hear the case if there is general PJ.
Corporation/Business subject to general personal jurisdiction
In the home state where it’s incorporated AND state of PPB
Unincorporated business (partnership) is a citizen of every state/country of all it’s members
Individual subject to general personal jurisdiction in:
Home where domiciled or where served with process in the state
If subject to specific jurisdiction, fairness factors court considers:
- Burden on defendant and witnesses
- State’s interest
- Plaintiff’s interest
Rule 4 Notice/Service of Process on Individual
- Personal Service
- At defendants usual above with someone of suitable age/discretion who resides there
- Service on agent
- Under method allowed by state
Rule 4 Notice/Service of Process on Business/Organization
- Delivering to an officer a copy of process
- Using method permitted by state law where federal court sits, or where service is being made
Rule 4 Notice/Service of Process in a Foreign country
- A method allowed by international agreement, Hague Convention
- As directed by American court;
- Method allowed by foreign countrys law
- Personal service in foreign country
- Mail sent by clerk of American court, with a signed receipt
Clerk can authorize default if:
- Claim for sum certain
- Defendant hasn’t appeared/answered
Otherwise, it will be the judge entering the default judgment
Diversity of citizenship Jurisdiction
- Complete diversity = every defendant must be of diverse state citizenship from each plaintiff
aka between citizens of different states or between a citizen of US state and foreign nation
- Amount in controversy exceeds $75K (good faith claim is what matters)
*Determined when case is filed
*If ACTUAL Judgement renders less than $75K, will NOT destroy diversity
Supplemental Jurisdiction
- Must be one claim with original jurisdiction (diversity and/or federal question)
- Supplemental jurisdiction must arise from a common nucleus of operative fact as the original jurisdiction such that the claims should be tried together
supplemental jurisdiction CANNOT override diversity jurisdiction (UNLESS brought by the defendant)
if same transaction/occurence = common nucleus test is met
*never use supplemental jurisdiction if new claim qualifies under FQ or diversity
*taking additional claim under supplemental jurisdiction is always at discretion of court
Removal
DEFENDANT transfers the court from state court to federal court, so long as subject matter jurisdiction exists!
Must remove NO LATER THAN 30 days after service of process
For diversity cases:
- can’t be removed if defendant is citizen of forum state
- if it’s been more than one year since filed in state court
For FQ:
- Federal defense is not sufficient
For Removal: the venue is proper where the federal court “embraces” the state court; don’t confuse with the normal venue rules
Remand
PLAINTIFF can move to remand back to state court.
If reason other than SMJ; only has 30 days.
If SMJ; can remand anytime
Federal Question Jurisdiction
Plaintiffs claim must “arise under” federal law.
Well-pleaded complaint rule: is the plaintiff enforcing a federal right?
Venue
Proper in federal district court where any defendant resides (if all defendants reside in the same state), or where a substantial part of any events/omissions occurred, or where a substantial part of property is situated.
If defendants residents of differenct states –> look to events/omissions/property.
Other fallback: where any defendant subject to personal jurisdiction
VENUE CAN BE WAIVED
Transfer when original court was PROPER
Court can order based on convenience of parties and witnesses/interests of justice.
Carries the law of the transferor court (including choice of law) to transferee court unless the transfer was ordered under forum selection clause
Transfer when original court was IMPROPER
Court can transfer to venue where case could have been brought or dismiss.
Law of transferee court applies
Erie Doctrine
Claims in diversity cases will be based on state law.
If federal law conflicts with state law –> federal law presumptively applies so long as valid.
If no federal law –> judge applies state law if issue is substantive
1. conflict/choice of law
2. elements of claim/defenses
3. statute of limitations
4. standards for granting new trial because jury award was excessive/inadequate
*substantive issues - is it outcome determinative/ will it change the outcome of the case?
Complaint
Notice of plaintiffs claim
1. statement of SMJ
2. short and plain statement showing relief
3. demand for relief
*sufficient facts to support plausible claim; if fraud/mistake/special damages –> pleaded with particularity
Defendants pre-answer motions Rule 12
- Motion for more definite statement
- Motion to strike
- any waivable defenses
within 21 days unless waived process than 60 days
*remainder of defenses on following cards)
Defendants Answer
- Specifically admits/denies allegations of complaint
- Set out all affirmative defenses
- 21 days after service;
- If rule 12 motion made –> 14 days after denial of motion
Rule 12 waivable defenses if NOT put into first response
3 P’s and a V
- lack of personal jurisdiction
- Improper venue
- Improper service (papers) - defects in documents and contents
- Improper service of process - defective way of serving process
Rule 12 defenses that can be raised at any time
- failure to state a claim (made as late as trial)
- lack of SMJ (anytime)
Compulsory counterclaim
arises out of same transaction or occurrence; must be plead by the D
Permissive counterclaim
Any other counterclaim; does not arise from same T/O – doesn’t have to be filed
Amendment “Relates Back”
When joining claim not originally asserted if –> pleading concerns the same conduct, transaction, or occurrence as the original pleading
When changing a Defendant –> relates back if:
1. amendment concerns same, conduct transaction/occurence as original
2. D has knowledge of the case
3. D knew or should have known that bur for a mistake, she would have been named originally
Crossclaims
claims against a co-party that arise from same transaction/occurence
okay if violates diversity as long as same t/o
Compulsory joinder / indispensable party
Court cannot accord complete relief without absentee; they have an interest that will be impaired by lawsuit and/or parties at substantial risk for multiple/inconsistent judgments without absentee
Class Action Requirements
- Numerosity - too many class members for practicable joinder
- Commonality - some issue in common to all class members, resolution will generate answers for everyone
- Typicality - class reps claims are typical of the class
- Representative will fairly/adequately represent the class
*Diversity of class rep = determines whether diversity exists in class action
Class Action Fairness Act; allows federal court to hear the case if:
- At least 100 members;
- Any class member, not just the representative, is of diverse citizenship of any defedant;
- Aggregated amount in controversy exceeds $5 million
Intervention as of right
P or D brings himself into the case
“of right” if absentee’s interest may be harmed if she’s not joined and that interest is not adequately represented by current parties
Permissive intervention
When there is a common question of law or fact –> permissive/discretionary with the court
Impleader
Brings nonparty into case for indemnity or contribution
indemnity (shifts liability completely)
contribution (shifts pro rata)
Disclosure required without a discovery request (Rule 26)
- Initial disclosures - persons/things that support claims or defenses
(all information reasonably available that is not privileged) - Disclosure of expert testimony - testifying experts and their reports
- Pretrial disclosures - trial witnesses, depositions used at trial/exhibits
- Relevant insurance agreements
(want to make sure the $$ is there) - Computation of damages
- Documents/objects/electronically stored data that might be used to support for claim/defense
- Names/addresses/phone numbers of people who may have discoverable information about claim/defense
Scope of disclosure/discovery
Any relevant non privileged matter that is proportional to the needs of the case (includes identity of persons having knowledge of relevant facts).
- costs of discovery/needs of the case will also be considered
a. trial prep materials –> if substantial need and to avoid undue hardship
b. expert witnesses:
- may depose testifying experts
- consulting experts need not be disclosed unless exceptional circumstances
*Without waiting for discovery request, party must provide copies/descriptions of documents that are in the disclosing party’s possession or control AND that the party may use to support its claims/defenses.
In camera inspection
Court could order disclosure of any information that is relevant to the subject matter of the current litigation;
Court would have to make in camera inspection of the file and redact any information that is irrelevant to the current litigation
Oral depositions
Both nonparties and parties can be deposed; nonparties must be subpoenaed.
Written deposition – questions to deponent submitted in writing
Interrogatories
Written question to parties answered under oath; NEVER to nonparties
answered within 30 days
Request to Produce
Asks party to make available for review/copying documents like ESI or permit entry on designated property to inspect/measure/etc.
Request for Admission
Written request for someone to admit as to truth/genuineness of matter or document
Motion to Compel Disclosure
Must certify good faith attempt to resolve dispute with opponent before motion to compel can be granted
Failure to Comply with Court Order
Could receive sanctions
No sanction if was substantially justified/unjust
Failure to disclose/supplement
Cannot use material unless substantially justified/harmless
Could receive sanctions
Failure to admit
May have to pay expenses for proving matter unless there’s a good reason for not admitting
Failure to attend own deposition/serve answers to interrogatoreis/respond to request for inspection
- Must certify good faith attempt to resolve dispute with opponent
- Sanctions
- Must seek order of protection to avoid sanctions if request was objectionable
Work product protection
Entitled to qualified immunity from discovery
(1) material created in anticipation of litigation is protected; need not be generated by lawyer
*could be subject to discovery if substantial need and undue hardship
Work Product Discoverable if
Opposing party shows:
substantial need and undue hardship
mental impressions/opinions/legal theories/conclusions ALWAYS protected - would have to be redacted
GOOD VERBIAGE TO USE IN DECIDING IF WORK PRODUCT APPLIES = whether there was any indication that any litigation was threatened or that any impressions/trial strategy of the Authority’s attorney was involved in making of the report
Pretrial conferences
Rule 26(f) conference of parties - planning for discovery (wide discretion for virtually any matter including settlement) / proposed discovery plan
Rule 16(b) scheduling conference to develop roadmap of case
- Sanctions if failure to attend/obey order
Voluntary Dismissal Without Court Permission
P can withdraw before the D serves an answer or motion for summary judgment
First - without prejudice; can refile
Second - with prejudice; cannot refile unless court consents
Voluntary Dismissal With Court Permission
Anytime after answer/motion then court permission is required
Right to Jury Trial 7th Amendment
At least 6, no more than 12
If fact underlies both law/equity –> jury decides facts before judge decides law
Jury instructions: objections must be made before jury retires/on the record
**Jury Demand IS REQUIRED; otherwise will be a BENCH trial
Motion for Summary Judgment Rule 56
No genuine dispute on a material fact; and entitled to judgment as a matter of law = NO TRIAL necessary
Appropriate at any time until 30 days after close of discovery
MADE BEFORE TRIAL
can be granted partially if there are multiple claims
Judgment as a Matter of Law (JMOL)
Motion made AT trial
- Evidence viewed in light most favorable to nonmoving party
- Standard: evidence is such that a reasonable jury would not have legally sufficient basis to find for the party on that issue
- Witness credibility is NOT considered
Renewed Motion for Judgment as a Matter of Law (RJMOL or JNOV)
Same standards as JMOL; have to file JMOL first on same grounds.
Occurs AFTER trial only
Motion for New Trial
Some error occurred at trial
- judge gave erroneous instruction;
- juror misconduct
- new evidence discovered that couldn’t have been discovered before
- damages inadequate/excessive
- verdict goes against evidence presented
*If Motion for new trial is made with RJMOL, and renewed motion is granted – the judge must rule hypothetically on a new trial motion
Remittur/Additur
When jury damages are excessive/inadequate
Remittur: allowed in federal court
- court offers P to remit part of damages or go through a new trial
Additur: NOT allowed in federal court
- court offers D to add to damages or go through with new trial
Final Judgment Rule
Losing party has right to appeal if the court’s order is a final judgment.
Time for appeal - generally 30 days
certification of class act = immediately reviewable
Interlocutory Appeals (nonfinal) are reviewable under Interlocutory Appeals Act when:
- District judge certifies that it involves a controlling issue of law
- There is a substantial ground for difference of opinion;
- Appeal would materially advance conclusion of case; and
- At least 2 appellate judges agree to appeal
Collateral order rule
Appellate court has discretion to hear appeal on issue if that issue:
- distinct from merits of case;
- involves important legal question;
- Is essentially unreviewable if parties await final judgment
Claim Preclusion / Res Judicata
Final judgment on the merits bars claimant from asserting the same claim in later action.
- Same claimant suing the same defendant
- Valid, final judgment on the merits
- Case 1 and Case 2 must be SAME claim (very fact specific)
- majority: if same t/o then same claim
Issue Preclusion / Collateral Estoppel
Judgment binds parties in subsequent actions between them as to issues actually litigated and essential to judgment in first action.
- Case 1 ended in valid, final judgment on merits
- Same issues actually litigated and determined in Case 1
- Issue was essential to judgment in Case 1
- Only against someone who was a party or in privity with a party in case 1
- Only used by someone who was a party or in privity with a party in case 1
Nonmutual Offensive issue preclusion – factors to determine if issue preclusion can be used when plaintiff is a party in case 2 but was not a party in case 1
- Issues identical?
- Final judgment on merits?
- Did party against whom judgment is sought have a fair opportunity to be heard?
- Not unfair/inequitable to apply issue preclusion?
Federal Interpleader Act Special Rule for subject matter jurisdiction, personal jurisdiction & venue
Interpleader can be brought if any two claimants are citizens of different states and the AIC is $500 or more
- Complete diversity is not required
Preliminary Injunction
Preserves status quo until hearing on the merits
- D must have been given notice AND opportunity to be heard before decision is made
Temporary Restraining Order (TRO)
Preserves status quo immediately
- Party seeking must show irreparable harm
- Generally requires notice
Amending Pleadings
- Once as a matter of course within 21 days
- After 21 days, requires consent of court
Rule 15(c) - Improper Names in Pleading
- Mistaken Party
- D must have received notice AND knew or should have known the action could have been brought against them
Rule 11
Attorney certifies document is not being prevented for improper purpose (harassment)
Sanctions
Prior to filing motion for sanctions, party must give opposing party opportunity to withdraw/correct offending document
Standards of Appeal
- Matters of law = de novo standard
- Matters of judicial discretion reviewed on an abuse of discretion standard
- Reasonable jury standard used if claim is that jury decided case incorrectly
Time Limit for Motion for Relief from Judgment
For grounds like: mistake, inadvertence, surprise, neglect, newly discovered evidence –> must be made WITHIN ONE YEAR
Clerical errors: can be made ANYTIME
All other grounds: within reasonable time
A party making a motion for judgment on the pleadings and accompanying it with an affidavit/other matters outside the pleadings, may actually be making what type of motion?
Probably trying to make a motion for summary judgment (using wrong label).
Court is expressly authorized to treat motion as summary judgment, giving parties full opportunity to present material relevant to summary judgment.
Under summary judgment, a party opposing the motion may present reasons why they need additional time to submit affidavits/depositions.
