civ pro Flashcards
fed rule civil p.12(h)(3)
- at any point in litigation, if a federal court determines that it lacks subject-matter jurisdiction, it must dismiss the case
- if you mess up subject matter jurisdiction, you are at risk for having your case thrown out at any point - courts take this very seriouslyfed rule civil p.12(h)(3)
federal subject matter jurisdiction
originates from
Article 3, Section 2 of Constitution
- fed jurisdiction is limited to cases
- arising under fed law or involving the US or foreign states as parties
- between diverse parties or,
- involving admiralty of maritime jurisdiction
the claim must also fall within a specific provision of US statute including (4) sub catergories including federal question jurisdiction, diversity jurisdiction, 3 & 4
28 US Code Section 1331
- 28 US Code Section 1331
- federal district courts “federal question jurisdiction extends to “civil actions arising under the Constitution, laws, or treaties of the United States”
- to establish federal question jurisdiction, the plaintiffs cause of action - and not the defendants defense - must arise under federal law (Mottely)
- looking to whether plaintiff cause of action is something created by law, fed statute, treaty etc,.
(28 US 1332a)
&
1332 (c)
-
diversity jurisdiction (28 US 1332a)
- federal courts diversity jurisdiction entends to civil actions
- amount in controversy exceeds $75,000
- that are between
- citizens of different states (CODS)
- citizens of a state or subjects of a foreign state or (COSSF)
- a foreign state as a plaintiff and citizens of a state or states (FSP&COS)
-
for diversity jurisdiction purposes, a person is a citizen of a U.S state if (Redner case):
- they are a citizen of a the US and
- they are domiciled within the state in question
- 28 US 1332c
- corporation is a citizen of every US state and foreign state
- where it has been incorporated and
- where it has its principal place of business
- principals place of business is “the place where a corporations officers direct, control and coordination corporations activities “nerve center”.
- corporation is a citizen of every US state and foreign state
- federal courts diversity jurisdiction entends to civil actions
personal jurisdiction
- a states personal jurisdiction over a defendant is established when the defendant: (in personam)
- is domiciled within the state
- is served while present within the state
- has consented (explicitly or implicitly) to litigating in the states or
- designates an agent to accept service of legal process within state
personal jurisdiction long arm statutes
-
long arm statutes (check state long arm statute to decide is ps is allowed)
- two variety
-
enumerated
- creates different categories of defendants allowed to be sued
-
constitutional limits
- if constitution allows it, they will exercise jurisdiction
-
enumerated
- two variety
court cases law - constitutional limits on personal jurisdiction
- general personal jurisdiction
- can bring any claim because they are at home in that state
- the power to adjudicate any claim - over defendants who are “essentially at home” in the state (DCP)
- defendants domiciled in state
- corporate defendants incorporated in state
- corporate defendant whose principal place of business is in the state
- specific personal jurisdiction-the power to adjudicate claims related to the defendants contacts with the courts territory over defendants who purposely avail themselves of the privilege of conducting activities in the state
USC 1391(b)
28 USC 1391(b)
venue is proper for federal action if it is filed in:
- a judicial district in which a **defendants resides, if all defendants are residents of the State** in which the district is located - a judicial district which a **substantial part of events** … giving rise to the claim occurred, or a **substantial part of property** that is the subject of the action is situated or - if none of the above exist, “any judicial district in which any defendants is subject to the courts **personal jurisdiction**”
1406(a)
1406(a)
if venue in a federal district court is “wrong” under the federal venue statutes
then the court shall
- dismiss the case or
- if its in the “interest of justice” then it shall tranfer the case to a federal district coirt where the case could have been brought
1404(a)
1404 (a) → no option to dismiss
deals w venue
if its in the “interest of justice)
then a federal district court shall transfer case
- to federal district court where case could have been brought
- to any federal district court which all parties have consented
test for interest of justice
to determine whether a transfer is in the “interest of justice” for either 1404a or the doctrine of forum non conveiens,
a fed court evaluaties
- private interest factors (eg access to evidence an witness)
- public interest factors (court congestion, local interest, whether a court is at home with the applicable law)
FORUM Selection Clause: if there us a valid forum-selection clause
FORUM Selection Clause: if there us a valid forum-selection clause
then for purposes of 1404(a) or the doctrine of non conveiens
in all but the most unusal cases, the interest of justice is served by holdng parties to forum-selection clause
fed r civ pro 8(a) → important!!
fed r civ pro 8(a) → important!!
plaintiff must file a complaint and within complaint there must be a claim for relief
- a jurisdictional statement (why this case has jurisdiction)
- statement of claim and
- demand for relief
fed rule civ pr 9(b)
fed rule civ pr 9(b)
- a claim for relief alleging fraud or mistake “must state with particularity the circumstances constituting fraud or mistake”.
when must defendant file answer
fed r civ p 12(a)(1)
a defendant generally must file an answer within 21 days after being served with the complaint,
except that:
- they must file their answer within 60 days after receiving the complaint if they waive service, and
- if they file a rule 12 motion, then generally must file their answers within 14days after court denies the motion
rule 11 (truthfulness in pleadings)
rule 11 (truthfulness in pleadings)
every paper filed in the federal civil case must be signed and each signature certifies that
- filing is “not being presented for an improper purpose”
- the filings legal contentions are “warranted under existing law or by a non-frivolous
- the filing factual contentions “have evidentiary support or will likely have evidentiary support
before filing a rule 11 sanction motions with the court; the movant must serve the motion on the other parties and wait 21 days to allow the challenged filing to be withdrawn or corrected (safe harbor period)
service of process fed civ p. 4
service of process fed civ p. 4
-
to serve defendant , a summons must be delivered with a copy of the complaint by: (FDDL)
- following the state law applicable int he state where the district court sits
- Delivering the summons and complaint to the defendant personally
- leaving the summons and complaint at the defendants address with someone “of suitable age and discretion” or
- delivering the summons and complaint to the defendants agent for recieving service of process
- within 90 days of complaint being filed
rule 20 a (1)
rule 20a (1)
-
plaintiffs may join a civil action if
- they assert rights arising out of the same transaction or occurrance and
- their claims share a common question of law or fact
rule 20 (a) (2)
- rule 20 (a) (2) → connects defendants
-
multiple defendants may be joined in a civil action if
- rights asserted against group of defendants arise out of the same transaction or occurrence
- claims must share a common question of law or fact
fed rule civ procedure 18(a)
if a plaintiff has properly asserted a claim against a defendant, then the plaintiff may join as many claims as it has against the defendant (fed r civ p 18(a) → connects claims
- doesn’t need the same relatedness and don’t need to share a common question of law or fact
rule 12 (b)
motion to dismiss
before responding to a pleading a party may instead motion to dismiss under Rule 12)b)
- lack of subject matter
- lack of personal jurisdiction
- Insufficient process (wrong papers)
- Insufficient service of process
- failure to state a claim upon which relief can be gratned or
- failure to join as necessary
must assert personal jursidiction, insufficient process, insufficient service of process, failure to state clim, or failure to join, during pre trial or it is waived!
fed r civ 12(h) (2)
at any point in trial, a defendant may assert failure to state a claim upon which relief can be granted or failure to join a required party fed r civ p.12(h)(2)
fed civ p 12 (e)
if a complaint is vague or ambiguous, then a defendant may file a pre-answer motion for a more definitive statement fed civ p 12 (e)
- a defendants motion for a more definitive statement must be filed before it files it answers
1367a
-
civil actions where federal courts have original jurisdiction (question or diversity) their supplemental jurisdiction extends to all other related claims that form part of the same case or controversy (28 USC 1367(a)**
- for supplemental jurisdiction purposes, a claim forms part of the same case of controversy as another claim if they share, a “common nucleus of operative fact” (Mine Workers v. Gibbs)
notice of suit
due process clause limits courts exercise of jurisdiction to cases where defendants receive notice and opportunity for hearing appropriate to the nature of case
notice must be reasonably calculated
amended pleading fed r civ p 15(a)
amended pleading fed r civ p 15(a)
a party may amend their pleading
- once without the courts permission
- within 21 days serving the pleading or
- within 21 day of recieving a responsive pleading or rul 12 motion or
- With the court’s permission “when justice so requires.”
fed r civ pr 7(a) (besides complaint and answer)
fed r civ pr 7(a)
besides the complaint and answer, other possible include
- a counterclaims (defendant assert a claim against plantiff) plus an answer to the counterclaim
- a crossclaim (codefendant assert a claim against a codefendant) plus an answer to the crossclaim
- third party complaint (defendant asserts a claim against a third party, plus an answer to the third-party complaint (third part responds to the defendants claim) and
- reply to an answer (if court orders it)
an answer to claim must
- an answer must
- admit, deny, or state that the part lacks knowledge or information to admit or deny every single allegation asserted against it by the opposing party and
- state all defenses to each claim asserted against it, including all avoidance and affirmative defense
1446 (remove a case to fed court)
-
to remove a case in fed court (1446)
- defendant must
- file a “notice of removal” in the appropriate federal district court within 30 days after receiving the notice that the case is removable, and
- promptly give written notice to all adverse parties and the state courts
- defendant must
1441(a)
removal jurisdiction
- **if** a case is brought in state court - **and** federal district court would have original jurisdiction over a claim in the case, - **then** a defendant may remove the case to the federal district court corresponding to where the court is **28 USC 1441(a)***
discovery base rule
once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relavent documents (zubulanke)
37(e)
if a party fails to preserve relevant information, then the court may order measures to cure the prejudice to another party
disclosures
in a fed case, parties must closes information without awaiting discovery request
- witness that may be used
- evidence that may be used to support disclosing party’s case
- calculated damages and supporting documents
- applicable insurances agreements
discovery tools
deposition
- questioning of witness
interrogotories
- open ended questions; broader questions
- document based questions
- request for production
- physical and mental examinations (need court order*) and
- request for admission
obtaining discovery
in general parties may obtain discovery “regarding any (1)non-privilege matter that is (2) relevant, if the discovery is (3) proportional to the needs of the case
attorney client privlege and work product protection
in general attorney client privilege protects a communication from disclosure
- confidential information
- involving legal advice
- between clients and counsel
rule 26b(3)
- documents and things prepared for litigation are not discoverable unless
- they are within the scope of discoverable info and
- another party has substantial need for the materials and cannot obtain in any other way
- in which case, a court must still protect an attorneys mental impressions, from disclosure
asserting privlege
rule 26b (5)
- to claim privlege or protection over otherwise discoverable information a party must:
- expressly claim privlege or protection, and
- describe the nature of the information withheld
37(a) motion to compel
if a party has sought unsuccessfully to obtain disclosure or discovery and has conferred in good faith with the nondisclosing party to obtain the information without court action,
then the party may move to compel disclosure or discovery
discovery sanctions
- provides incomplete or incorrect disclosures
- provides improper discovery
- fails to comply with discovery order
- fails to make mandatory
disclosures or to supplement mandatory disclosures - fails to accurately responds to request for admission or
- generally fails to cooperate in discovery,
- then the court may order appropriate sanctions
