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Rule Statements > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

Personal Jurisdiction

A

Courts power over the parties.

The exercise of personal jurisdiction must fall within a state statue and exercise of personal jurisdiction must be constitutional.

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2
Q

States authorize jurisdiction over defendant who:

A
  1. is present in forum state
  2. is domiciled in forum state
  3. conducts systematic and continuous business in state;
  4. consents to jurisdiction; or
  5. commits an act covered by long arm statute
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3
Q

Due process standard for personal jurisdiction

A

Defendant must have such minimum contacts with the forum such that the exercise of personal jurisdiction is fair and reasonable!!!!

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4
Q

Specific Personal Jurisdiction

A

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?

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5
Q

General Personal Jurisdiction

A

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.

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6
Q

Corporation/Business subject to general personal jurisdiction

A

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

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7
Q

Individual subject to general personal jurisdiction in:

A

Home where domiciled or where served with process in the state

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8
Q

If subject to specific jurisdiction, fairness factors court considers:

A
  1. Burden on defendant and witnesses
  2. State’s interest
  3. Plaintiff’s interest
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9
Q

Rule 4 Notice/Service of Process on Individual

A
  1. Personal Service
  2. At defendants usual above with someone of suitable age/discretion who resides there
  3. Service on agent
  4. Under method allowed by state
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10
Q

Rule 4 Notice/Service of Process on Business/Organization

A
  1. Delivering to an officer a copy of process
  2. Using method permitted by state law where federal court sits, or where service is being made
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11
Q

Rule 4 Notice/Service of Process in a Foreign country

A
  1. A method allowed by international agreement, Hague Convention
  2. As directed by American court;
  3. Method allowed by foreign countrys law
  4. Personal service in foreign country
  5. Mail sent by clerk of American court, with a signed receipt
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12
Q

Clerk can authorize default if:

A
  1. Claim for sum certain
  2. Defendant hasn’t appeared/answered

Otherwise, it will be the judge entering the default judgment

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13
Q

Diversity of citizenship Jurisdiction

A
  1. 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

  1. 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

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14
Q

Supplemental Jurisdiction

A
  1. Must be one claim with original jurisdiction (diversity and/or federal question)
  2. 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

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15
Q

Removal

A

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

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16
Q

Remand

A

PLAINTIFF can move to remand back to state court.

If reason other than SMJ; only has 30 days.

If SMJ; can remand anytime

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17
Q

Federal Question Jurisdiction

A

Plaintiffs claim must “arise under” federal law.

Well-pleaded complaint rule: is the plaintiff enforcing a federal right?

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18
Q

Venue

A

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

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19
Q

Transfer when original court was PROPER

A

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

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20
Q

Transfer when original court was IMPROPER

A

Court can transfer to venue where case could have been brought or dismiss.

Law of transferee court applies

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21
Q

Erie Doctrine

A

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?

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22
Q

Complaint

A

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

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23
Q

Defendants pre-answer motions Rule 12

A
  1. Motion for more definite statement
  2. Motion to strike
  3. any waivable defenses

within 21 days unless waived process than 60 days

*remainder of defenses on following cards)

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24
Q

Defendants Answer

A
  1. Specifically admits/denies allegations of complaint
  2. Set out all affirmative defenses
  3. 21 days after service;
    - If rule 12 motion made –> 14 days after denial of motion
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25
Q

Rule 12 waivable defenses if NOT put into first response

A

3 P’s and a V

  1. lack of personal jurisdiction
  2. Improper venue
  3. Improper service (papers) - defects in documents and contents
  4. Improper service of process - defective way of serving process
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26
Q

Rule 12 defenses that can be raised at any time

A
  1. failure to state a claim (made as late as trial)
  2. lack of SMJ (anytime)
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27
Q

Compulsory counterclaim

A

arises out of same transaction or occurrence; must be plead by the D

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28
Q

Permissive counterclaim

A

Any other counterclaim; does not arise from same T/O – doesn’t have to be filed

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29
Q

Amendment “Relates Back”

A

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

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30
Q

Crossclaims

A

claims against a co-party that arise from same transaction/occurence

okay if violates diversity as long as same t/o

31
Q

Compulsory joinder / indispensable party

A

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

32
Q

Class Action Requirements

A
  1. Numerosity - too many class members for practicable joinder
  2. Commonality - some issue in common to all class members, resolution will generate answers for everyone
  3. Typicality - class reps claims are typical of the class
  4. Representative will fairly/adequately represent the class

*Diversity of class rep = determines whether diversity exists in class action

33
Q

Class Action Fairness Act; allows federal court to hear the case if:

A
  1. At least 100 members;
  2. Any class member, not just the representative, is of diverse citizenship of any defedant;
  3. Aggregated amount in controversy exceeds $5 million
34
Q

Intervention as of right

A

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

35
Q

Permissive intervention

A

When there is a common question of law or fact –> permissive/discretionary with the court

36
Q

Impleader

A

Brings nonparty into case for indemnity or contribution

indemnity (shifts liability completely)
contribution (shifts pro rata)

37
Q

Disclosure required without a discovery request (Rule 26)

A
  1. Initial disclosures - persons/things that support claims or defenses
    (all information reasonably available that is not privileged)
  2. Disclosure of expert testimony - testifying experts and their reports
  3. Pretrial disclosures - trial witnesses, depositions used at trial/exhibits
  4. Relevant insurance agreements
    (want to make sure the $$ is there)
  5. Computation of damages
  6. Documents/objects/electronically stored data that might be used to support for claim/defense
  7. Names/addresses/phone numbers of people who may have discoverable information about claim/defense
38
Q

Scope of disclosure/discovery

A

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.

39
Q

In camera inspection

A

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

40
Q

Oral depositions

A

Both nonparties and parties can be deposed; nonparties must be subpoenaed.

Written deposition – questions to deponent submitted in writing

41
Q

Interrogatories

A

Written question to parties answered under oath; NEVER to nonparties

answered within 30 days

42
Q

Request to Produce

A

Asks party to make available for review/copying documents like ESI or permit entry on designated property to inspect/measure/etc.

43
Q

Request for Admission

A

Written request for someone to admit as to truth/genuineness of matter or document

44
Q

Motion to Compel Disclosure

A

Must certify good faith attempt to resolve dispute with opponent before motion to compel can be granted

45
Q

Failure to Comply with Court Order

A

Could receive sanctions

No sanction if was substantially justified/unjust

46
Q

Failure to disclose/supplement

A

Cannot use material unless substantially justified/harmless

Could receive sanctions

47
Q

Failure to admit

A

May have to pay expenses for proving matter unless there’s a good reason for not admitting

48
Q

Failure to attend own deposition/serve answers to interrogatoreis/respond to request for inspection

A
  1. Must certify good faith attempt to resolve dispute with opponent
  2. Sanctions
  3. Must seek order of protection to avoid sanctions if request was objectionable
49
Q

Work product protection

A

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

50
Q

Work Product Discoverable if

A

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

51
Q

Pretrial conferences

A

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
52
Q

Voluntary Dismissal Without Court Permission

A

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

53
Q

Voluntary Dismissal With Court Permission

A

Anytime after answer/motion then court permission is required

54
Q

Right to Jury Trial 7th Amendment

A

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

55
Q

Motion for Summary Judgment Rule 56

A

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

56
Q

Judgment as a Matter of Law (JMOL)

A

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
57
Q

Renewed Motion for Judgment as a Matter of Law (RJMOL or JNOV)

A

Same standards as JMOL; have to file JMOL first on same grounds.

Occurs AFTER trial only

58
Q

Motion for New Trial

A

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

59
Q

Remittur/Additur

A

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

60
Q

Final Judgment Rule

A

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

61
Q

Interlocutory Appeals (nonfinal) are reviewable under Interlocutory Appeals Act when:

A
  1. District judge certifies that it involves a controlling issue of law
  2. There is a substantial ground for difference of opinion;
  3. Appeal would materially advance conclusion of case; and
  4. At least 2 appellate judges agree to appeal
62
Q

Collateral order rule

A

Appellate court has discretion to hear appeal on issue if that issue:

  1. distinct from merits of case;
  2. involves important legal question;
  3. Is essentially unreviewable if parties await final judgment
63
Q

Claim Preclusion / Res Judicata

A

Final judgment on the merits bars claimant from asserting the same claim in later action.

  1. Same claimant suing the same defendant
  2. Valid, final judgment on the merits
  3. Case 1 and Case 2 must be SAME claim (very fact specific)
    - majority: if same t/o then same claim
64
Q

Issue Preclusion / Collateral Estoppel

A

Judgment binds parties in subsequent actions between them as to issues actually litigated and essential to judgment in first action.

  1. Case 1 ended in valid, final judgment on merits
  2. Same issues actually litigated and determined in Case 1
  3. Issue was essential to judgment in Case 1
  4. Only against someone who was a party or in privity with a party in case 1
  5. Only used by someone who was a party or in privity with a party in case 1
65
Q

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

A
  1. Issues identical?
  2. Final judgment on merits?
  3. Did party against whom judgment is sought have a fair opportunity to be heard?
  4. Not unfair/inequitable to apply issue preclusion?
66
Q

Federal Interpleader Act Special Rule for subject matter jurisdiction, personal jurisdiction & venue

A

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
67
Q

Preliminary Injunction

A

Preserves status quo until hearing on the merits

  • D must have been given notice AND opportunity to be heard before decision is made
68
Q

Temporary Restraining Order (TRO)

A

Preserves status quo immediately
- Party seeking must show irreparable harm
- Generally requires notice

69
Q

Amending Pleadings

A
  1. Once as a matter of course within 21 days
  2. 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

70
Q

Rule 11

A

Attorney certifies document is not being prevented for improper purpose (harassment)

71
Q

Sanctions

A

Prior to filing motion for sanctions, party must give opposing party opportunity to withdraw/correct offending document

72
Q

Standards of Appeal

A
  • 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
73
Q

Time Limit for Motion for Relief from Judgment

A

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

74
Q

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?

A

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.

Rule Statements (13 decks)

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