Civ Pro Flashcards
What are the elements of a complaint, and what must be the effect of the complaint?
(i) a short and plain statement of the grounds asserting the court’s subject matter jurisdiction,
(ii) a short and plain statement establishing a plaintiff’s entitlement to relief, and
(iii) a demand for judgment for the relief sought by the pleader.
The complaint must only give the defendant fair notice of the plaintiff’s claim and the grounds upon which it rests.
What are the two most common forms of subject matter jurisdiction?
Diversity Jurisdiction: The US District Courts have juris over actions when (i) the parties are citizens of different states and (ii) the amount in controversy exceeds $75,000
Federal Question Jurisdiction: When the claim arises under the U.S. Constitution, a federal treaty, or federal law
How detailed must a complaint be?
The complaint must assert sufficient facts to plausibly give rise to an entitlement of relief.
Detailed factual allegations are not required in a complaint, but a party must not merely recite the elements of a cause of action with broad, conclusory statements. Mere conclusory statements and assertions devoid of facts are not sufficient to plausibly give rise to an entitlement of relief.
In certain circumstances, a party is required to plead with greater detail than under the general rules. A party alleging fraud must state with particularity the circumstances constituting fraud.
When are most Rule 12(b) motions required to be raised by?
Most Rule 12(b) motions to dismiss must be raised in a pre-answer motion, or if there is no pre-answer motion, in the answer, or they are waived.
However, Rule 12(b)(6), the defense of failure to state a claim upon which relief can be granted, may be raised in any pleading, in a motion for judgment on the pleadings, or at trial.
Whats a Rule 56 motion, when may it be made, and what is the result?
A motion for summary judgment is when the movant bears the burden of showing that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. This usually involves a hearing.
A motion for summary judgment may be made at any time until 30 days after the close of all discovery. In deciding a motion for summary judgment, the court considers the pleadings as well as all the other materials cited by the parties.
The result of prevailing on this motion is a final judgment on the merits in favor of the movant.
Removal requirements
A defendant who wants to remove a state action to federal district court must file a notice of removal with the district court within 30 days after receipt of service on that defendant of the initial pleading or summons.
In general, all defendants who have been properly joined and served are required to consent to the removal.
Any civil action commenced in state court that is within the original jurisdiction of a US district court may generally be removed by the Defendant to the district court for the district in which the state court action was commenced.
If a removal of a state case is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed
Remand
A motion to remand the case for a defect other than lack of subject matter jurisdiction must be made within 30 days of the filing of the notice of removal.
Voluntary Dismissal in GA Civ Pro
In GA, a plaintiff can voluntarily dismiss an action without leave of the court before the first witness is sworn or with the agreement of all of the parties who have appeared. Unless stated otherwise, the voluntary dismissal is without prejudice.
If a P voluntarily dismissed a prior state or federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be w/ prejudice.
If the first witness has been sworn, the action may only be dismissed by court order, on terms that the court considers proper. The voluntary dismissal is also without prejudice unless the order states otherwise.
After voluntary dismissal, the case can be renewed within the statute of limitations period or within six months after the voluntary dismissal, whichever is later. In order to renew the case after dismissal, the plaintiff is required to pay certain costs.
The plaintiff may only use the dismissal process one time if the dismissal occurred after the expiration of the statute of limitations.
Voluntary Dismissal in FRCP
A plaintiff may dismiss an action once, without leave of the court and without prejudice, by filing a notice of dismissal at any time before the opposing party serves either an answer or a motion for summary judgment.
If a P voluntarily dismissed a prior state/federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be w/ prejudice.
Venue
Geographical location of fed ct that can hear a lawsuit.
FRCP: Proper in any judicial district where: (i) any Defendant resides so long as all Defendants reside in the same state, (ii) a substantial portion of the events that gave rise to the suit occurred, (iii) a substantial part of the property at issue is located, or (iv) any Defendant is subject to the court’s personal jurisdiction (but only if no other basis for venue)
GA: Venue generally must be in the county where the defendant resides when the case is filed.
-An individual resides in the county where that person is domiciled.
-Business entities generally “reside” in any county in which they are subject to personal jurisdiction, such as a county with the business’s office.
—-Georgia law dictates that a business resides in the location of its registered office or its principal office.
Valid Service of Process
Valid service of process must be made by either a US citizen who has been specially court appointed, a certified process server, or a nonparty who is at least 18 years old and has been appointed to serve process.
* Must comply with both the procedural rules and due process.
* Notice, as required by due process, means that a defendant must be reasonably apprised of the pending suit and afforded an opportunity to present objections. So if the plaintiff knows the defendant did not receive notice through service of process, then the plaintiff must take additional reasonable steps to provide notice.
Service of process must be made by the person effecting service within five days of receipt of the summons and complaint (meaning when the person filed the complaint).
Service of Process on Corporation
Valid service of process on a corporation requires personal service of both the summons and complaint to an officer or a managing or registered agent of the business.
If personal service to an officer or agent of the corporation is not possible, then the Secretary of State may be served on behalf of the company.
Also, if a corporation does not have a registered agent, the corporation may be served by certified mail to the corporation’s principal office.
Service of Process on Individual
May be made generally by: (i) personally serving the summons and complaint on the defendant; (ii) leaving the S&C at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; or (iii) delivering the S&C to an agent appointed by the defendant or otherwise authorized by law to receive service
- In GA, service in cases of minor or persons of unsound mind must be made on the defendants personally and on their parents or guardians.
- A person may consent to the electronic service of pleadings by filing a notice of consent
Answer Requirements
An answer is a responsive pleading following a complaint. In GA, an answer must be filed within 30 days of receiving the complaint. A defendant will automatically be in default if an answer is not filed within 30 days.
Default Procedure and Effect
A defendant will automatically be in default if an answer is not filed within 30 days.
However, in GA a defendant can move to open the default judgment by filing defenses with costs, if the defendant does so within 15 days of the default judgment being entered.
If the defendant timely moves to open the default judgment, then the default will be vacated, and the case may proceed.
After the 15 day window following the entry of a default judgment, the plaintiff is entitled to a verdict and judgment.
Sanctions for failure to comply with a court order
If a party fails to obey a court order regarding discovery, then the court may impose any of the following sanctions: (i) direct that matters addressed in the order be taken as established fact, (ii) prohibit the disobedient party from introducing matters into evidence, (iii) striking pleadings in whole or part, (iv) staying further proceedings, (v) dismissing the action, (vi) rendering a default judgment, and (vii) treating the disobedience as contempt of court. This list is not exhaustive and the court may order any sanction that is “just”.
Directed Verdict/Judgment as a Matter of Law
Once a party has been fully heard on an issue at a jury trial, the court may grant a motion for directed verdict against a party if the court finds that there is insufficient evidence for a jury to reasonably find for that party.
In GA, a verdict should not be directed unless there is (i) no issue of fact, or (ii) unless proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed.
Personal Jurisdiction in GA
A court must have a valid basis to exercise personal jurisdiction over a defendant.
In Georgia, a court has a valid basis to do so if: (i) The Defendant is voluntarily present in Georgia, (ii) The Defendant is domiciled in Georgia, (iii) the defendant consents to Georgia court’s personal jurisdiction, or (iv) the Georgia long-arm statute applies.
Under the Georgia long-arm statute, Georgia may exercise personal jurisdiction over a nonresident who cause an injury in Georgia by an act or omission done outside Georgia—but only if the nonresident (i) regularly does business, (ii) engages in another persistent course of conduct, or (iii) derives substantial revenue from goods used or services rendered in Georgia.
Otherwise a Georgia court has no power over a defendant, and an inquiry into whether exercising personal jurisdiction comports with due process is unnecessary
Ways Personal Jurisdiction may be obtained for FRCP
- Service of Process: serving process on Defendant voluntarily in state where court is located (forum state)
- Consent: Plaintiff consents to the court’s juris by filling the complaint in that court
A D can consent by:
(i) Express consent (contractually agreeing to the ct’s juris),
(ii) Implied consent (engaging in an activity that the forum st has a sub.al interest in regulating),
(iii) Waiver (by failing to assert a PJ objection in a pre-answer motion or answer, whichever occurs first), or
(iv) Appearance (by voluntarily appearing in ct to litigate the merits of the case w/o challenging PJ)
- Specific (case-linked): P’s claim arises from or is closely related to D’s minimum contacts (i.e., purposeful availment) w/ forum st AND exercise of juris complies w/ notions of fair play and sub.al justice
- General (all-purpose): D has continuous and systematic contacts w/ forum st so sub.al that D is essentially “at home” (i.e., D’s domicile)
