CIV PRO Flashcards
Diversity
a. Plaintiff & defendant must reside in DIFFERENT states; AND
i. If multiple plaintiffs and at least 2 reside in same state – diversity ruined
ii. Corporations can reside in principle place of business OR state of incorporation
b. Case must be worth an excess of 75K
i. “legal certainty” that case is worth excess of 75k
Federal Question
if case is about a federal question = have subject-matter jurisdiction
- admiralty law
- intellectual property (copyright; patent; etc)
How to have personal jurisdiction
- If you reside in a given state;
- Physically present in a state & you’re served while there; OR
- If you consent/agree to be bound by laws of that state (i.e. clause in a K)
Sufficient Minimum Contact
relationships, friends, family, business, connections to that jurisdiction
- Turn to this when it’s an out of state party being forced to litigate in that state
- More contact, more likely to have personal jurisdiction and less violation of due process
When does removal come into play
case in state court and a party is trying to move it to fed court
- only defendant may remove
- if plaintiff tries to remove = improper = remanded to state court
Removal Legal Standard
can remove a case if it could have been filed in federal court to begin with aka there was subject-matter jurisdiction
Service is proper if
- Provides adequate notice;
- Is reasonably likely to inform
Personal Service
Non-party, over 18 years old, serves defendant personally
Indirect/Substitute Service
i. Leaving at defendant’s home with someone of suitable age aka someone that will inform the party
ii. First class mail as long as acknowledgement form is returned
iii. In any way that complies with state statute
CANNOT SERVE AN INDIVIDUAL AT THEIR JOB IF THEY ARE NOT THERE
Serving a Corporation
- through designated agent; OR
- someone of “sufficiently high placement”
12b Motion to Dismiss (Pre-Answer Motion)
a. If motion to dismiss for lack of subject-matter – can always do it
b. If motion for lack of personal jurisdiction/improper venue/improper service – must include others in same motion to dismiss, otherwise waived
c. Can also include motion to dismiss in Answer
Summary Judgment
- Filed AFTER DISCOVERY, before trial
- Standard: no genuine dispute of material fact
Evidence of both sides = there is a dispute
Judgment as a Matter of Law
- By Defendant after Plaintiff rests OR by either side after Defendant rests
- BEFORE case goes to jury
- “reasonable jury does not have sufficient evidence to find for X”
Judge usually denies to allow jury figure it out
Renewed Motion for Judgment as a Matter of Law
- If jury finds against you after your motion for judgment as a matter of law was denied
Party that makes renewed motion MUST HAVE MADE THE ORIGINAL motion
Complaint Elements
i. Grounds for jurisdiction;
ii. Summary of the facts;
iii. Demand for relief (i.e. damages)
Complaint Procedure
- filed with clerk’s office - begins suit & statute of limitations begins to run
- gets filed with summons
- first filed then served
Answer
- deny / admit allegations
ANY ALLEGATIONS NOT DENIED ARE TAKEN AS ADMITTED
Amending Pleading - on your own
Can do it once without court’s permission, as long as it’s done within 21 days of service of the original pleading
Amending Pleading - by leave of court
“when justice so requires”
Relate Back
Amended pleading will relate back when it arose out of the same conduct, transaction, or occurrence of the original pleading
- Usually done for purpose of statute of limitations
Discovery Rule
anything is discoverable as long as:
- it’s not privileged;
- it’s relevant; and
- it’s proportional to the needs of the case
Work Product
- Privileged
- Prepared by attorney or attorney’s staff in anticipation of trial
State law v. State law
Law of state where court sits will prevail - aka where is the case being tried
State law v. Federal law
State substantive law generally applies
- UNLESS, underlying issue is procedural - then federal law applies
- if conflict between state & federal law = federal law prevails
