Civ Pro Flashcards
1
Q
COMMENCEMENT OF ACTION
A
A. Filing – commences civil action by filing in federal district courts
B. Pre-Filing Notice Requirements – generally not, but:
1. Federal Tort Claims – must be submitted administratively b4 suit commenced; if feds reject tort claim notice or fail to make final decision w/in 6 months, P can sue
2. Waiver – failure to comply w/pre-filing notice affirmative defense, but D waives if not timely asserted, or if asserted by then starts discovery or other conduct inconsistent w/seeking dismissal
C. Relationship to Service – 120 days after filing to serve; miss deadline, suit disappears, SOL blown
2
Q
JURISDICTION AND SERVICE
A
“A court must have personal jurisdiction over the parties to the suit through 1) notice (service of process by a person 18 or older who is not a party to the litigation), and 2) minimum contacts with forum state (physical presence, residency, long-arm statute).”
3
Q
Service of Process
A
method to serve formal notice & opportunity to be heard; establish PJ; “to satisfy due process requirements, notice must be “reasonably calculated, under all the circumstances” to reach the intended person. Mullane.”
1. Waiver of Service – P mails D copy of summons & complaint, request to waive service of process via 1st class mail; can also waive by K; if D refuses to waive, court can impose costs 2. Personal Service on Individuals – in state where DC sits a. Delivery to the Person – hand it to D anywhere w/in state b. Abode – leave w/resident of D’s home of suitable age and discretion c. Who May Serve Papers – anyone 18+ not a party to suit d. Territorial Limits – w/in the state or 100 miles of federal courthouse d. Community Property Considerations – service on either spouse should be sufficient for both; to be safe Ps normally serve both spouses 3. Service by Publication – if D has fled service, concealed herself; general not OK if D’s name and address attainable 4. Service on the Federal Government – 1) personal or certified mail of USA’s office in district where action filed; 2) copy of summons & complain to US Attorney General 5. Service on Corporations and Other Business Associations – required by law to have registered agent to accept service; does not mean you have consented to PJ by having agent in state 6. Service in Specific Situations – in rem, serving a foreign government 7. Service After Initial Service of Process – of other documents in suit, usually done electronically
4
Q
Minimum Contacts (General Jurisdiction)
A
required in addition to service of process to establish PJ
1. Generally – DC cannot assumed PJ over D unless D has minimum contacts w/state where DC sits 2. Domicile – general jdx over people domiciled in state, even if temporarily left 3. No Contacts, But In-State Service Obtained – “tag service” upon resident of another state who is served in-state. Burnham. 4. Consent or Waiver – D consents/fails to challenge PJ in pre-answer motion or answer. FRCP 12. 5. Consent by Contract – “parties consent to personal jurisdiction in Alaska”
5
Q
Long-Arm Statutes (Specific Jurisdiction)
A
- Generally – party submits to PJ in a state by engaging in specific conduct; commonly:
a. Business –transact biz in state
b. Tort – commit tort in state
c. Property – own property in state
d. Insurance – if insurance contracts to insure someone in state
2. Jurisdiction is Specific to In-state Activity – only give jdx to hear dispute tightly related to presence in state; e.g., dispute must arise from business transaction used to assert PJ proper
3. Transacting Business – purposeful availment of D to the jurisdiction of forum state
a. Factors Considered – 1) nonresident D or foreign corp must purposefully act or consummate some transaction in forum state; active is enough, passive not; advertising not enough, having store in state is; 2) COA arises from act or transaction in state; 3) must not “offend traditional notions of fair play and substantial justice”
b. Physical Presence not Required – D need not be physically in state; phone, mail solicitations may support jurisdiction
c. Internet Transactions – test: how “active” is the website? Soliciting business and taking orders = PJ; providing information = generally no PJ
d. Registered Agent Distinguished – not enough to establish minimum contacts if agent appointed merely to accept service of process; serving CEO while in state still confers though
4. Commission of Tort
a. Generally – D commits in state, jdx usually attaches; look for car crashes on exam
b. Products Liability Cases – P must show that D placed products in “stream of commerce” and it was reasonably foreseeable that corporation’s products would end up in the foreign state; still ask if it’s “fair” to bring corporation into state
5. Ownership or Use of Property – jurisdiction ONLY to resolve disputes over D’s ownership or use of in-state property
6. Insuring Risk – when out-of-state D insures in-state P; P will attempt to collect policy
7. Full Jurisdiction Obtained – if requirements of long-arm statute met & minimum contacts exist
6
Q
Challenges to Personal Jurisdiction, Consolidation, and Waiver
A
PJ can be waived
1. Appearance – not waiver of PJ; waiver if not objected to by motion or answer FRCP 12 2. Method – object by motion in first pleading, filed before answer; or answer to complaint 3. Exception – motions for default; longer time to vacate for lack of PJ FRCP 60 4. Timeliness, Consolidation – FRCP 12 applies 5. Waiver a. By Waiting Too Long to Move for Dismissal – timely object by motion or in answer; must move to dismiss w/in reasonable time and not engage in inconsistent behavior after 12(b) b. By Seeking Affirmative Relief – theory is D has consented to jurisdiction
7
Q
In Rem Jurisdiction
A
real property provides minimum contacts where PJ otherwise unattainable; notice & opportunity to be heard still required; generally supplanted by long-arm statutes
8
Q
Subject Matter Jurisdiction
A
authority of court to adjudicate a particular dispute; not waivable
1. Federal Question – arising under the laws, treaties, or Constitution of the US; 28 USC 1331 2. Diversity Jurisdiction – controversies between citizens of different states in matters >$75k; state citizenship is of time of filing of suit; of child or decedent, not personal representative; complete diversity required; in class actions, named Ps must all be diverse from Ds, at least one of named Ps must have claim >$75k; 28 USC 1332 3. Supplemental Jurisdiction – federal courts that have proper jdx over one claim often have proper jdx over supplemental state law claims so long as they are part of the “same case or controversy” or “common nucleus of operative fact” 28 USC 1367 4. Removal Jurisdiction – D of claim from state court to federal court; must do so w/in 30 days; if DJ only basis for removal, can’t remove if was filed in state where at least one D is a citizen
9
Q
Venue and Change of Venue
A
which federal district court is proper to hear; generally note “assuming venue is proper” when answering question that doesn’t focus on venue
1. Basis – for establishing proper venue a. Residence of D – any D resides in state where DC located b. Location of Events or Property – where “a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated” 28 USC 1391 c. Personal Jurisdiction – if no other district proper, venue proper in DC where D subject to PJ 2. Actions Against Corporations – corporate D’s residence is district of incorporation or where its headquarters are located. Hertz. 3. Improper Venue – courts can transfer or dismiss if P files in improper venue 4. Forum Non Conveniens – compelling reason why case should be heard somewhere else; center of gravity of lawsuit far away, would be a hardship to have parties, witnesses attend; courts can also take into consideration docket issues
10
Q
Complaint and Answer
A
FRCP 3
1. Complaint Contents – JARR – signed by attorney of record a. Jurisdiction – allege SMJ and PJ b. Allegation of Facts – plausibility required (notice pleading) – FRCP 8 c. Right to Relief – legal theory specified (tort, breach of K); statute based on d. Relief Requested – specify remedy requested 2. Joinder of Claims – P is the “mistress of her complaint”; can assert multiple claims even if they don’t all arise out of one transaction or occurrence; court can sever later 3. Single Complaint – all claims arising out of same T/O must be asserted; no “claim splitting” 4. Pre-Answer Motion to Dismiss – lack of jdx, insufficient service, failure to join a party, 12(b)(6); no special appearance by D necessary; deficiency not waived by filing motion to dismiss 5. Answer – D must serve w/in 21 days (60 if D outside US); 60 if D waived service (90 if outside US); denials may be based on lack of knowledge; affirmative defenses expressly pleaded 6. Post-Answer Motion to Dismiss – motion for summary judgment filed w/or after answer
11
Q
Notice Pleading
A
FRCP 8; plausible allegations required; Iqbal, Twombly
12
Q
Pleading Special Matters
A
fraud, breach of trust, denial of capacity pled specifically; special damages specified in complaint [FRCP 9]; affirmative defenses specially pleaded [FRCP 8(c)]
13
Q
Signing of Pleadings, Sanctions
A
complaint signed by attorney of record; frivolous claims sanctioned if not warranted by existing law or brought in good faith [FRCP 11]
14
Q
Challenges to the Pleadings
A
FRCP 12
1. In General – in answer or motion to dismiss for failure to state a claim [12(b)(6)], judgment on the pleadings [12(c)], or to strike invalid defense or redundant matter [12(f)] 2. Motion to Dismiss for Failure to State Claim – FRCP 12(b)(6) a. Purpose – allow D to avoid baseless claims b. Drastic Remedy – granted sparingly; denies P her day in court c. Truth Inference – factual allegations contained in complaint assumed to be true; have to challenge PJ, venue, service of process in 1st 12(b) motion; consolidate all defenses; SMJ not waived d. Amendment Allowed – of complaint by P in lieu of dismissing e. Too Vague – complaint too vague to satisfy due process notice of fact & nature of claim
15
Q
Consolidation and Waiver of Certain Defenses
A
FRCP 12
1. In General – certain defenses must be timely asserted and consolidated or are deemed waived 2. FRCP 12 Defenses – 1) lack of SMJ; 2) lack of PJ; 3) lack of minimum contacts; 4) improper venue; 5) failure to state a claim; 6) failure to join indispensible party 3. Lack of Subject Matter Jurisdiction – can be raised at any time, even after judgment 4. Lack of Personal Jurisdiction or Improper Venue a. Challenge by Motion – prior to filing answer b. Challenge in Answer – if included, D can wait and file actual motion to dismiss/change venue
16
Q
Counterclaims
A
D → P; FRCP 13
1. Compulsory – arising out of the same T/O as P’s claim; can’t be brought separately; P’s complaint tolls SOL on any compulsory counterclaim 2. Permissive – arise from separate set of facts
17
Q
Crossclaim
A
D → D; anything on same side of lawsuit between people similarly situated; FRCP 13
18
Q
Amended Pleadings
A
FRCP 15
1. Generally – before a responsive pleading served; or w/in 21 days if no responsive pleading yet 2. Leave of Court – generally liberally granted; will deny when BUUF: Bad faith; Undue delay; Unfair prejudice; Futility 3. Claims, Defenses, or Parties – once properly in court, court likely to allow you to add new claims or defenses (i.e., based on discovery); MUCH LESS LIKELY to allow new parties 4. Relating Back – whether amendment relates back to date of initial pleading (for SOL purposes) a. New Claim or Defense – relates back if arises out of same T/O b. New Party – relates back only if 1) new party arises out of same transaction/occurrence; 2) new party must have notice; 3) not unfair to add party b/c party knew or should have known that but for mistaken identity, claim would have been brought against him c. New Party − Restriction – does not relate back if amendment necessitated by inexcusable neglect or result of conscious decision of P d. New Party − Practical Effect – claims against new D almost never relate back if would have otherwise been barred by SOL
19
Q
Appearance and Default
A
FRCP 55 – default judgment prevents losing party from asserting defenses might have otherwise been raised and compulsory counterclaims; preclusive if court had proper jdx over D, and D had proper notice & opportunity to appear
1. General Overview – if D fails to timely respond, P entitled to default judgment; need not give D notice of default 2. Appearance – if D has “appeared,” P must give D notice of default; D can prevent by serving and filing answer before hearing on P’s motion; “appears” = attorney’s notice of appearance, informal negotiations if D aware of P’s claim and intended to defend against it 3. Entry and Judgment Amount – court can order hearings if uncertain; award what requested by P 4. Protection for Members of Military – tolls SOL against them as to default judgment 5. Motion to Vacate – In General – FRCP 60(b); claw your way back in 6. Motion to Vacate – for Lack of Personal Jurisdiction – if filed by D w/in reasonable time 7. Motion to Vacate – Other – typically based on D’s admission of error; losing summons a. Meritorious Defense – that would have asserted but for quick entry of default; likely to vacate if not much time has passed b. Reason for D’s Failure to Appear – stubbornness or failure to appreciate summons not OK; misunderstanding or miscommunication between attorneys, clients, parties OK c. D’s Diligence – court less inclined to grant if D doesn’t timely move to vacate d. Effect Upon P – if vacating default would prejudice P; e.g., crucial evidence no longer there
20
Q
FRCP 17
A
- Real Party in Interest – straightforward on bar exam; P has to have “standing”; common sense
- Capacity – adults of sound mind, otherwise must sue through GAL
21
Q
Compulsory Joinder of Indispensable Parties
A
FRCP 19
1. Generally – necessary, indispensable parties; can also make Rule 12(b) motion for failure to join indispensable party 2. Complete Relief – can’t be accorded among parties w/out joined party’s presence (e.g., all parties to a K; however joint tortfeasors are never indispensable parties) 3. Rights Are Being Adjudicated – person claims an interest in action and must be party to adequately represent interests, or protect interest of those who are already parties a. Indispensable Parties – parties to a K; named insureds b. Parties Who Are Not Indispensable – joint tortfeasors 4. Procedure – if parties don’t comply voluntarily, court will order joinder 5. Dismissal in Absence of Indispensable Party – if action can’t proceed “in equity and good conscience”; can’t be joined if person not subject to service of process or venue improper
22
Q
Permissive Joinder of Parties
A
FRCP 20
1. Common Question of Law or Fact – claims from same transaction & occurrence, involving common question of law or fact; liberal: encourages all interested parties to join 2. Separate Trials – if presence of party would cause embarrassment, undue expense, prejudice
